i supreme court of capitania - capital university
TRANSCRIPT
No. 19-0514
IN THE
Supreme Court of Capitania
IN RE G.H.
CAROLYN HOOPER
Petitioners,
v.
HARRISON COUNTY PROBATE COURT,
Respondent,
ON WRIT OF CERTIORARI TO THE STATE OF CAPITANIA COURT OF APPEALS
BRIEF FOR THE RESPONDENT
Team 15
Counsel for the Respondent
ORAL ARGUMENT REQUESTED
i
QUESTION PRESENTED
Did the court violate state and federal constitutional rights based on (1) the Equal Protection Clause
and (2) the Due Process Clause of the Fourteenth Amendment when the court denied Petitioner
appointed counsel in a privately initiated adoption proceeding?
ii
TABLE OF CONTENTS
Question Presented........................................................................................................................... i
Constitutional Provisions & Statutes Involved ............................................................................... 1
Statement of the Case...................................................................................................................... 1
Procedural History .............................................................................................................. 4
Summary of the Argument.............................................................................................................. 5
Argument ........................................................................................................................................ 7
I. Equal Protection of the Laws Under Both Capitania and United States
Constitutions Is Not Violated in Privately Initiated Adoption Proceedings ....................... 8
A. The State of Capitania Is a Mere Arbiter Over Private Civil Proceedings in
Adoption Cases ..................................................................................................... 10
B. Questions of State Action Doctrine Must Be Construed Critically to
Preserve the Requisite Overlap of Public and Private Spheres............................. 15
C. Equal Protection Remains Intact Despite Any Existence of State Action in
Capitania’s Private Adoption Proceedings ........................................................... 16
D. Parents are Not a Suspect Class Requiring A Heightened Level of Scrutiny ....... 16
E. Strict Scrutiny Only Applies to Parents If A Fundamental Right Is
Infringed ................................................................................................................ 17
F. The Capitania Adoption Statute Withstands Strict Scrutiny................................. 18
II. Due Process is Flexible in Nature; Thus, a Due Process Right to Counsel Does
Not Exist in a Privately Initiated Adoption Proceeding Under the Eldridge
Factors. .............................................................................................................................. 20
A. Petitioner’s Private Interest in Maintaining Her Parental Rights Are Not
Compelling Because the Lack of Complexity and Weight of the Facts
Against Her Fail to Justify a Need for Counsel .................................................... 21
B. The Procedural Structure of Privately Initiated Adoption Proceedings in
Capitania Provided Ample Opportunity for Petitioner to Make Her Case
Before a Judge, Thereby Adhering to the Due Process Clause of the
Fourteenth Amendment......................................................................................... 23
C. The Government Has a Substantial Interest in Encouraging the Child’s
Custodians to Provide a Permanent, Stable, Safe, and Loving Environment
Where the Child Can Flourish .............................................................................. 25
iii
Conclusion .................................................................................................................................... 29
Appendix ....................................................................................................................................... 30
TABLE OF AUTHORITIES
U.S. Supreme Court Cases
Burton v. Wilmington Parking Authority, 365 U.S. 715, (1961) .................................................. 11
Caban v. Mohammed, 441 U.S. 380 (1979).................................................................................. 13
Cafeteria and Rest. Workers Union, Loc. 473, AFL-CIO v. McElroy, 367 U.S. 886 (1961) ....... 20
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 .................................................. 9, 16
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).................................................. 10
Eisenstadt v. Baird, 405 U.S. 438 (1972) ....................................................................................... 9
Lassiter v. Dept. of Soc. Services of Durham County, N. C., 452 U.S. 18 (1981) ................. passim
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982).......................................................... 6, 10
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..................................................................................... 14, 25
Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................ passim
Michael H. v. Gerald D., 491 U.S. 110 (1989) ............................................................................... 8
Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) ....................................................... 9
Reitman v. Mulkey, 387 U.S. 369 (1967) ...................................................................................... 11
Shelley v. Kraemer, 334 U.S. 1 (1948) ......................................................................................... 11
Stanley v. Illinois, 405 U.S. 645 (1972) ........................................................................................ 22
Troxel v. Granville, 530 U.S. 57 (2000) ............................................................................. 9, 16, 18
Tulsa Prof. Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988) ......................... 10, 12, 14
Wolff v. McDonnell, 418 U.S. 539 (1974) .................................................................................... 24
Constitutional Provisions
U.S. CONST. amend. XIV, § 1................................................................................................. 9, 20
State Supreme Court Cases
Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544-545 (1941) .................................. 9
Harrold v. Collier, 107 Ohio St.3d 44 (2005) ................................................................................ 9
In re Adoption of A.W.S., 377 Mont. 234 (2014) ...................................................................... 9, 13
In re Adoption of Greer, 70 Ohio St.3d 293 (1994)...................................................................... 24
In re Adoption of Masa, 23 Ohio St.3d 163 (1986) ...................................................................... 23
In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351 (2010) ...................................... 24
In re Adoption of Ridenour, 61 Ohio St.3d 319 (1991) .......................................................... 14, 26
In re Baby Girl Baxter, 17 Ohio St. 3d 229, 232 (1985) .............................................................. 13
In re Hayes, 79 Ohio St.3d 46, 48 (1997) ..................................................................................... 17
In re M.M., 156 Ill.2d 53, 63 (1993) ............................................................................................. 11
Matter of Adoption of K.A.S., 499 N.W.2d 558, (N.D. 1993)....................................................... 13
State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587 (1994) .......................................................... 12
State v. Aalim, 150 Ohio St.3d 489 (2017) ..................................................................................... 9
State v. Hand, 149 Ohio St.3d 94 (2016) ........................................................................................ 9
State v. Noling, 149 Ohio St. 3d 327, 330 (2016) ................................................................. 6, 9, 16
State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124 ............................................................... 9
iv
Zockert v. Fanning, 310 Or. 514, (1990) ...................................................................................... 13
State Cases
Angus v. Angus, 14AP-159, 2014 WL 4748485, 5 (Ohio App. 10th Dist. 2014) ......................... 12
In re Adoption of Brianna Marie D., L-04-1367, 2005 WL 435167, at 3 (Ohio App. 6th Dist.
2005) ......................................................................................................................................... 16
In re Adoption of Drake, CA2002-08-067, 2003 WL 231298, 2 (Ohio App. 12th Dist. 2003) .. 12,
25
In re Adoption of I.M.M., 16 COA 018, 2016 WL 5092511, 2 (Ohio App. 5th Dist. 2016) . 12, 25,
28
In re Adoption of J.L.M-L., CT2016-0030, 2017 WL 90636, 1 (Ohio App. 5th Dist. 2017) ...... 12
In re Adoption of L.T.M., 214 Ill.2d 60 (2005) ............................................................................. 13
In re Adoption of M.C., 11CA5, 2011 WL 6372834, 2 (Ohio App. 4th Dist. 2011); ................... 12
In re Jay R., 150 Cal.App.3d 251, (Cal. App. 3d Dist. 1983) ................................................. 13, 18
Matter of J.M.P., 151 Ohio St.3d 1515, 2018-Ohio-365, (2017) ........................................... 22, 27
Statutes
Cap. Fam. Code § 400-226 ............................................................................................... 18, 21, 28
Cap. Fam. Code § 400-227 ............................................................................................... 18, 21, 22
Secondary Sources
Christopher W. Schmidt, The Sit-Ins and the State Action Doctrine, 18 Wm. & Mary Bill Rights
J. 767 (2010) ............................................................................................................................. 11
Kevin L. Cole, Federal and State “State Action”: The Undercritical Embrace of A
Hypercriticized Doctrine, 24 Ga. L. Rev. 327 (1990) ........................................................ 14, 15
1
CONSTITUTIONAL PROVISIONS & STATUTES INVOLVED
This case involves Cap. Rev. Code § § 400-222, 400-226, 400-227, 400-235, 400-322, Cap
Const. Art. I, § 2, Cap Const. Art. I, §16, and US Const. Amend. XIV. Relevant portions of these
statutes are reproduced in Appendices A and B, respectively.
STATEMENT OF THE CASE
G.H. was born to Carolyn Hooper (“Petitioner”) and Morgan Johnson (“Father”) on May
14, 2015. (R. at 1). Following the birth, G.H. lived with Petitioner in Capitania and had regular
contact with Father, despite Petitioner and Father never having been married. (R. at 1). Petitioner
and Father had a mutual agreement for visitation where Father saw G.H. every other weekend and
on all holidays. Although no Juvenile Court custody action was ever filed, Father had his paternity
established administratively, willingly paid child support, and was emotionally invested in the
health and wellness of the child. (R. at 1).
Petitioner worked at a local department store part time, made minimum wage, received
food assistance through the State, and was on Medicaid, all of which prompted the maternal
grandparents to care for G.H. while Petitioner was away from the home. (R. at 2). However, there
was growing concern from the maternal grandparents about Petitioner’s behavior and deteriorating
ability to care for her child. (R. at 2).
Also contributing to Petitioner’s parents’ concern, Petitioner began dating and living with
a boyfriend in January 2017. (R. at 2). Many times, when Father picked up the child for visits,
G.H. appeared dirty and in discomfort. (R. at 2). Although Father called Children’s Services to
report Petitioner’s lack of adequate care for their child multiple times, Children’s Services never
removed the child from Petitioner’s home, or even opened a case for Petitioner. (R. at 2).
2
On April 2, 2017, a neighbor called local law enforcement responding to loud noises,
arguing, and fighting overheard from Petitioner’s house. (R. at 2). The neighbor expressed concern
about a domestic violence situation in the household. (R. at 2). When the authorities arrived on the
scene, they found scales, drug substances, large sums of cash, and other drug production
instruments and controlled substances on the kitchen table and counter. (R. at 2). Petitioner and
her boyfriend were arrested and charged with drug trafficking and manufacturing
methamphetamine. (R. at 2). Following the arrest, Children’s Services were called to the scene
and put G.H. under the care of Petitioner’s parents. (R. at 2).
Soon after the events that transpired on April 2, Father filed for custody of G.H. in the
Harrison County Juvenile Court. (R. at 3). On September 30, 2017, the Juvenile Court ultimately
designated Father as the residential and custodial parent, providing County guideline visitation to
the maternal grandparents. (R. at 3). Father routinely cooperated with the maternal grandparents’
visitation schedule. (R. at 3).
Petitioner was served with the agency documents while incarcerated but did not participate
in the hearing. (R. at 3). Her boyfriend was sentenced to ten years in prison after pleading guilty
to his now second offense involving methamphetamine production and trafficking. (R. at 3).
Petitioner was sentenced to 18 months in prison on July 7, 2017, where she was to be released on
the condition that she remain in outpatient drug treatment for an additional year. (R. at 3).
Petitioner’s parents regularly used their scheduled visitation times with G.H., but also attempted
to keep G.H. acquainted with G.H.'s biological mother. (R. at 3). However, during Petitioner’s 18-
month sentence, Petitioner only met with G.H. nine times. (R. at 3).
Five months following Petitioner’s sentencing hearing, Father married Arlene Johnson
(f/k/a Beltram). (R. at 3). Arlene Johnson helped care for G.H. not only after she married Father
3
but was also a large part of G.H.'s life throughout Petitioner’s court proceedings. (R. at 3). Arlene
Johnson and G.H. built such a strong relationship that G.H. refers to Arlene Johnson as her own
mother. (R. at 3).
Following her full 18-month sentence, Petitioner was released on January 7, 2019 and
moved into low income housing. (R. at 3). Petitioner complied with her outpatient treatment and
recovery and met with her parole officer. (R. at 3). The court did not order Petitioner to pay for
child support because Petitioner was incarcerated when Father filed his child support order,
however Petitioner never filed for an order of visitation on her own. (R. at 4). Although Petitioner
obtained a job at a fast food restaurant one month following her release from prison, she never
attempted to pay child support for G.H. (R. at 4). Nor did Petitioner ever apply for visitation or
custody rights of her own. (R. at. 4). Petitioner only paid for food, bought some clothing for G.H.
to wear during visitations, and gave G.H. gifts appropriate for specific holidays. (R. at 4).
Arlene Johnson filed a Petition for Adoption of G.H. in Harrison County Probate Court on
March 4, 2019. (R. at 4). Notably, the petition indicated that because the biological mother had not
maintained de minimis contact and had not provided support for the child in the preceding year
prior to the filing, the biological mother’s consent was not required. (R. at 4). Petitioner received
notice two days later and contacted her local legal aid office. (R. at 4). The office would not take
her case, but the office advised that she should attempt to object the adoption in writing and request
legal counsel with a claim that she had a Constitutional right in a case that involves the potential
loss of all rights to the child. (R. at 4).
Petitioner submitted her own document, pro se, describing her limited interactions with
G.H. and demanded representation because of her constitutional rights. (R. at 5). At the first
hearing on April 4, 2019, Petitioner explained that she was indigent and that it would be unfair to
4
not provide counsel, but the Probate Court Judge denied her request, noting that this was a private
adoption case and appointing counsel only extends to adoptions initiated by the State of Capitania.
(R. at 5).
At the final hearing regarding the biological mother’s consent and best interest of the child
on April 22, 2019, the court found that the adoption should be granted without the requirement of
her consent because of Petitioner’s failure to pay some form of informal child support to Father.
(R. at 5). Finally, the court concluded that it was in the best interest of G.H. that the adoption be
granted due to Petitioner’s past behavior and current circumstances, as well as G.H.'s significant
relationship with Father and Arlene Johnson. (R. at 5). The final order of adoption was filed on
April 26, 2019. (R. at 5).
Following the decision, Petitioner contacted the legal aid office regarding the court’s
decision to deny her representation. (R. at 5). The office heard Petitioner’s case, and ultimately
decided to represent Petitioner in the present matter. (R. at 5).
Procedural History
On April 4, 2019, the Probate Court denied Petitioner’s request to appointed counsel. (R.
at 5). The final hearing was held on April 22, 2019 and granted adoption to Father and Arlene
Johnson. (R. at 5). The final order of adoption was filed on April 26, 2019. (R. at 5). On May 3,
2019, Petitioner filed notice of appearance, motion for stay, and notice of appeal. (R. at 5). The
Seventh District Court of Appeals granted the stay. (R. at 5). On October 14, 2019, the Court of
Appeals of Capitania affirmed the judgment of the Harrison County Probate Court. (R. at 1).
Thereafter, Petitioner filed for writ of Certiorari to the Supreme Court of Capitania.
5
SUMMARY OF THE ARGUMENT
The Fourteenth Amendment functions as a medium to protect citizens from government
oppression, ensuring rights so ingrained in our nation’s history and traditions to be regarded as
fundamental. Consequently, the government’s reach into the private sphere is limited, particularly
regarding domains so intimate as familial relations. Through this matter of first impression,
Petitioner is asking the Court to not only interpret the adoption statutes meaning, but to extend
government reach by declaring that a procedural mechanism, judicial oversight, is state action.
Such a declaration creates undue accountability on the state while affirmatively ruling that any
judicial oversight the legislature requires is an overreach by the government into private affairs.
Petitioner desires the Court to draw a hard line between public and private realms such that any
government oversight falls into a public realm and any private action cannot involve public
officials or offices of any kind, despite an abundance of case law and policy to the contrary.
Capitania’s Family Code is designed to oversee private individuals as they undertake the
noble yet enormous responsibility to provide care, love, safety, stability, and a home for a child.
The court’s role in such matters is not to declare a parent unfit to provide care, custody, and
parental duties to their child, it is to ensure the best interests of the child. Mediating the interests
of the parties involved does not create state action giving rise to infringing on a parent’s
fundamental right to their parent-child relationship. Due process does not require courts to appoint
counsel for indigent parents facing termination of their parental rights in adoption proceedings.
Nor does Capitania’s adoption statutory scheme create unequal application of the law to similarly
situated indigent parents. Thus, this Court should affirm the Court of Appeals of Capitania in
finding the Capitania adoption statute upholds Petitioner’s Fourteenth Amendment Equal
Protection and Due Process rights.
6
Capitania’s Constitution states that “[g]overnment is instituted for [the peoples’] equal
protection and benefit.” Cap. CONST. Art. I § 2. Equal protection of the laws requires application
of Capitania’s laws be exercised fairly for all citizens, indigent or not. Petitioner’s claim that her
equal protection rights were violated when the court denied her request for appointed counsel fails
for several reasons. First, the present case is a privately initiated adoption proceeding, lacking state
action as the court acts solely as a conciliator to ensure the welfare of the child and overt assistance
was given to the Father and Stepmother. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937
(1982). Second, parents, even indigent, are not a suspect class requiring a higher level of scrutiny.
See State v. Noling, 149 Ohio St. 3d 327, 330 (2016). Appellant’s claim that she is similarly
situated as indigent parents in state-initiated abuse, neglect, or dependency proceedings is
incorrect. Parents who are facing the full force of the state are in a different position in more need
of counsel to assure they understand the effects of the allegations posited against them. Third, even
if the Court finds that a state action exists, and a higher level of scrutiny is required Capitania’s
adoption procedures meet constitutional standards. Capitania’s statute unambiguously
distinguishes between state-initiated proceedings and privately initiated proceedings. Regardless
of policy-based arguments either Petitioner or the State profess, it is not the role of courts to base
constitutionality on policy. See Lassiter v. Dept. of Soc. Services of Durham County, N. C., 452
U.S. 18, 24 (1981). Thus, despite Petitioner’s claim to the contrary, her equal protection rights
were not violated.
Furthermore, a fundamental right to appointed counsel for privately initiated adoption
procedures does not exist under due process. Even for state initiated proceedings where parents
face termination of their parental rights the Supreme Court has held there is not an automatic right
to counsel, unless one’s personal liberty is at stake, but under the pliant nature of due process
7
certain cases can rise to the level of requiring counsel. Id. Unlike state-initiated proceedings where
parents may face complex situations involving criminal allegations, court mandated behaviors, and
expert witnesses, private adoptions initiated by parents already residing with and caring for the
child do not escalate to the same level. In Lassiter, the Supreme Court adopted the factors from
Mathews v. Eldridge to determine when due process requires the court to appoint counsel. See
Lassiter, 452 U.S. at 24; see also Mathews v. Eldridge, 424 U.S. 319, 321 (1976). Examining the
current case under these factors results in a failure of Petitioner’s claim. First, Petitioner’s private
interests in maintaining her parental relationship with her child is given deference as the Petitioner
had an opportunity to demonstrate her evidence of de minimis contact at trial. Second, Capitania’s
adoption procedures are designed to prevent parents who have maintained more than de minimis
contact with their children from having their rights severed. Finally, the government’s interest in
the permanence and support an adoption provides a child maximizes the need for efficient adoption
procedures. These three factors taken holistically show the Petitioner’s due process rights were
met.
The State of Capitania is not insensitive to the delicate and emotional nature of adoption
processes. Indeed, it is compassion for the child that leads to the careful construction of adoption
statutes by the legislature and the prudent consideration of the parent-child relationship that
ensures Petitioner’s constitutional rights were upheld. For these reasons this Court should affirm
the decision of the Court of Appeals of Capitania.
ARGUMENT
Petitioner in this case is advocating for a systemic change in procedural mechanisms that
will complicate an already overburdened public service for private use. Legal representation in
publicly initiated adoption proceedings is reserved for individuals that are unequipped to fairly
withstand the obstacles of our legal system. These procedures require legal counsel to advocate on
8
both sides which party is best suited to raise a child, ultimately controlling the fate of the adoptee.
This entire procedure is initiated by, facilitated, and determined by the government with a good
faith effort to ensure the wellbeing of the child is protected. Privately initiated adoption cases are
distinct from these cases, and therefore are not afforded the same availability to an already scarce
government resource. In privately initiated adoption cases, the government acts as a mere arbitrator
to right the wrongs of a failed parent for the benefit of a child’s future, where a vetted, stable
alternative absorbs parental responsibility. Petitioner in this case is attempting to blur the lines
between two different legal procedures for her own private gain without thinking of the
repercussions her claim may have on the wellbeing of her own child and other similarly situated
children.
Petitioner’s claim that her equal protection and due process rights were violated when the
court denied her request for appointed counsel fails on all measures of Constitutional protections.
Allowing for privately initiated adoption proceedings to be guaranteed legal representation would
be too far of an extension of the government into the private affairs of the family. Beyond reaching
too far into private matters, the government would be tasked with ratifying an entire system of
legal procedures, costing valuable resources to a system reserved for individuals that truly rely on
public assistance.
I. Equal Protection of the Laws Under Both Capitania and United States
Constitutions Is Not Violated in Privately Initiated Adoption Proceedings
Limiting the long arm of government reach into private civil affairs is a main precept of
the federalist framework on which our nation is built. The Fourteenth Amendment embodies the
ideal that the government does not oppress its citizens and ensures protection of those rights so
ingrained in our nation’s history and traditions as to be regarded as fundamental. Michael H. v.
Gerald D., 491 U.S. 110, 124 (1989). However, the protection of these rights must be balanced
9
with individuals’ liberty to be free from government interference in those deeply intimate affairs
such as familial relations. Article I § 2 of Capitania’s Constitution provides that “[g]overnment is
instituted for their equal protection and benefit.” Cap. Const. Art. I, § 2. As such, it is the functional
equivalent of the Equal Protection Clause of the Fourteenth Amendment, which provides that
government may not “deny to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST. amend. XIV, § 1. Unlike other states, Capitania has not explicitly broadened its
Constitution’s equal protection clause beyond that of the federal government. In re Adoption of
A.W.S., 377 Mont. 234, 237 (2014). Hence, for purposes of legal analysis, these two equal
protection provisions are one and the same. See State v. Aalim, 150 Ohio St.3d 489 (2017); see
also State v. Hand, 149 Ohio St.3d 94 (2016); see also Direct Plumbing Supply Co. v. Dayton, 138
Ohio St. 540, 544-545 (1941).
Parenthood and its intrinsic rights are perhaps among the oldest liberties protected under
the Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 65 (2000). Parents themselves are
not a protected class; however, if their fundamental parental rights “in the care, custody, and
control of their children” are infringed, then strict scrutiny applies. Id.; see also State v. Thompson,
95 Ohio St.3d 264, 2002-Ohio-2124; see also Regents of Univ. of California v. Bakke, 438 U.S.
265, 357 (1978); see also Aalim at ¶31; see also Harrold v. Collier, 107 Ohio St.3d 44 (2005).
Equal protection under the law means that the law treats similarly situated persons the same. City
of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (1985). However, this does
not require equal application of all laws to all persons. The State can thus treat different classes of
persons differently. Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). Nevertheless, the State cannot
treat similarly situated people differently for reasons other than in furtherance of the purpose of
the laws. Noling, 149 Ohio St. 3d at 330. The crux of Petitioner’s claim is that parents facing
10
termination of their parental rights through privately initiated adoption proceedings face the same
outcome as parents in state initiated abuse, neglect, or dependency proceedings, and are thus
similarly situated. Yet, the indispensable ingredient to the claim is that the State has violated
Petitioner’s right to equal protection of the laws, as the Fourteenth Amendment does not protect
citizens from private acts. Tulsa Prof. Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988).
The State’s role as an arbiter over private adoption proceedings does not amount to the required
state action to vindicate Petitioner’s equal protection claim.
A. The State of Capitania Is a Mere Arbiter Over Private Civil Proceedings
in Adoption Cases
The court’s role in adoption proceedings as a conciliator between biological and adoptive
parents in privately initiated adoptions does not constitute state action. State action exists when
the infringement of a right is “caused by the exercise of some right or privilege created by the State
or by a rule of conduct imposed by the state or by a person for whom the State is responsible.”
Lugar, 457 U.S. at 937. State action can exist in privately initiated adoption proceedings only if
the “private parties make use of state procedures with the overt, significan t assistance of state
officials.” Tulsa Prof. Collection Services, 485 U.S. at 486. Notably, “private use of state-
sanctioned private remedies or procedures does not rise, by itself, to the level of state action.”
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 622 (1991). The scheme for a state action
analysis, as provided by the Supreme Court in Lugar, is a two pronged one: whether the
constitutional right or privilege was infringed through a source of state authority, and whether the
private party charged with the infringement can be characterized as a state actor. Edmonson, 500
U.S. at 620 (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). Indisputably, the
second prong of this test is not satisfied, as the stepmother’s motion to adopt her stepdaughter
11
cannot be characterized as state action. Therefore, this court should turn to the first prong of the
test: whether parental rights are infringed through state authority rising to the level of state action.
Petitioner argues that state action is present in Capitania’s adoption proceedings because
without court involvement, adoption is impossible. (R. at 21). That adoption is a creature of statute
does not immediately place it within the first prong of the Lugar test. See In re M.M., 156 Ill.2d
53, 63 (1993). Petitioner’s reliance on Shelley v. Kraemer is misplaced and is not as effective as
petitioner purports. In Shelley, the Supreme Court held that court enforcement of racially restrictive
covenants in the buying and selling of property was “not a legitimate exercise of the state's police
power but violated the guaranty of the equal protection of the laws.” Shelley v. Kraemer, 334 U.S.
1, 21 (1948). The Court held that upholding the restrictive covenants constituted state action
because only court intervention could effectuate the racial discrimination in the property market.
Id. By this logic, as many legal scholars have pointed out, virtually any court enforcement of
private actions could constitute state action if context remains absent. Christopher W. Schmidt,
The Sit-Ins and the State Action Doctrine, 18 Wm. & Mary Bill Rights J. 767, 781 (2010). The
implications of such a broadly defined state action doctrine are not lost on the Supreme Court, who
has limited the application of state action to tests whereupon “‘[o]nly by sifting facts and weighing
circumstances' on a case-by-case basis can a ‘nonobvious involvement of the State in private
conduct be attributed its true significance.’” Reitman v. Mulkey, 387 U.S. 369, 378 (1967) (citing
Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961)). The Supreme Court has left
it to state courts to broaden the scope of state action requirements and itself continues to apply the
narrow version. Schmidt, supra at 783. Because Capitania courts have interpreted the state
constitution’s equal protection clause in line with the federal constitution, it does not follow that
Capitania must broaden its state action doctrine.
12
The Tulsa test posits that unless the private actors acquire significant or overt assistance by
Capitania’s procedures or officials, it cannot be so easily held that the court’s conciliatory role
constitutes state action in private adoption proceedings. See Tulsa Prof. Collection Services, 485
U.S. at 486. In Ohio, a state with a statutory scheme for adoption similar to that of Capitania, courts
have consistently found no state action exists. See In re Adoption of Drake, CA2002-08-067, 2003
WL 231298, 2 (Ohio App. 12th Dist. 2003) (holding that in privately initiated adoptions unless a
statute or proceeding for counsel is instituted by the state there is not right to counsel); Angus v.
Angus, 14AP-159, 2014 WL 4748485, 5 (Ohio App. 10th Dist. 2014) (holding “[t]here is no
authority in Ohio for a right to counsel in a proceeding where the state is not the initiating entity
and the parentage dispute merely reflects proceedings between individual parties”); In re Adoption
of J.L.M-L., CT2016-0030, 2017 WL 90636, 1 (Ohio App. 5th Dist. 2017) (holding “we have
recognized that there is no right to the appointment of counsel in the context of adoption”) ; see
also In re Adoption of M.C., 11CA5, 2011 WL 6372834, at 2 (Ohio App. 4th Dist. 2011); In re
I.M.M., 16 COA 018, 2016 WL 5092511, at 2 (Ohio App. 5th Dist. 2016).
In states similar to Capitania, such as Ohio, where state action has been found to exist in
private adoption, the cases are plainly distinguishable. For example, in State ex rel. Howard v.
Ferreri, an adoption agency moving to gain complete custody of a child was found to be
performing a traditional public function under the state action doctrine. State ex rel. Howard v.
Ferreri, 70 Ohio St.3d 587, 591 (1994). In the present case, there is no overt assistance by any
state agency or officials assisting the stepmother in adopting her stepdaughter. (R. at 4). The court
found in a similar case that when a mother’s attorney also serves as guardian ad litem for the child,
thus creating a conflict of interest, the mother has a right to appointed counsel when appealing the
court’s decision to terminate her parental rights. In re Baby Girl Baxter, 17 Ohio St. 3d 229, 232
13
(1985). These cases directly contrast with the present case, where the procedure itself is being
challenged. Finally, no clearer violation of equal protection exists than when statutes provide for
counsel on behalf of mothers, but not fathers, based on gender stereotypes. See Caban v.
Mohammed, 441 U.S. 380 (1979). However, gender stereotyping does not occur in the current
situation. Rather, this case focuses on custodial parents privately moving to adopt a child, and a
biological parent who has not maintained the de minimis contact with the child.
Petitioner correctly points out that some states find equal protection violations under their
state constitutions when indigent parents are not provided counsel in private adoption proceedings.
However, just because other states have found state action by virtue of the court’s mandatory
involvement in private adoption proceedings does not require Capitania to do the same.
Furthermore, while Justice Learned’s dissent points out that many state high courts require counsel
be appointed in private adoption proceedings for indigent parents, these cases are decided in the
context of their own state constitutions and statutory schemes. See Zockert v. Fanning, 310 Or.
514, 522 (1990) (“the legislature went beyond the mandate of Lassiter by ensuring aid of counsel
to all indigent parents faced with a chapter 419 termination proceeding”); Matter of Adoption of
K.A.S., 499 N.W.2d 558, 563 (N.D. 1993) (holding that “assistance of appointed counsel to protect
parental rights is a “privilege” within the meaning of Article I, Section 21”); In re Adoption of
A.W.S., 377 Mont. at 241 (holding that “legislature has provided a categorical right to counsel to
indigent parents in state-initiated termination proceedings”); In re Jay R., 150 Cal.App.3d 251,
264 (Cal. App. 3d Dist. 1983) (“[t]he compelling need for counsel in section 232 proceedings is
well defined in case and statutory law”); In re Adoption of L.T.M., 214 Ill.2d 60, 76 (2005)
(holding that a parent who under the Juvenile Court Act would lose his parental rights for the exact
reason as under the same definition as the Adoption Act requires counsel). In each of the
14
aforementioned cases, the holdings were specific to the state statutory schemes. However
compelling a policy argument Petitioner may make in furtherance of her cause, that is the role of
the legislature not the courts to enact. Indeed, the purposes of federalism are served because state
action prevents “courts from invoking the Constitution to regulate private conduct that Congress
can regulate, the doctrine fosters separation of powers-reserving to the legislative branch the power
to regulate private activity.” Kevin L. Cole, Federal and State “State Action”: The Undercritical
Embrace of A Hypercriticized Doctrine, 24 Ga. L. Rev. 327, 347 (1990).
The most critical appraisal of Capitania’s role in private adoption cases finds a media tor
between private individuals; a neutral party whose sole interest is in the creation of a “permanent
and stable home” for the child. In re Adoption of Ridenour, 61 Ohio St.3d 319, 328 (1991). In
Tulsa, the Supreme Court identified the probate court’s self-initiating time limitation on a non-
claim statute without notice to claimants as state action because the court itself set the time bar in
motion. Tulsa Prof. Collection Services, 485 U.S. at 488. This essential action by the Oklahoma
probate court is in stark contrast to a petition being filed by a private individual, as in Capitania’s
adoption proceeding. (R. at 4). The Supreme Court held that when a state denies appellate review
of a private adoption proceeding solely due to an individual’s inability to afford the related fees,
equal protection is violated because the infringement of rights rests on one’s economic status.
M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996). Justice Learned’s dissent would characterize the
Supreme Court’s decision in M.L.B. as requiring additional protection against the court, which
holds the sole power to extinguish the parent-child relationship. (R. at 19). But, here too, the key
component is the State’s denial of appellate review, not the adoption procedure itself. By ensuring
a child is placed in the care and custody of guardians who seek it through legitimate means,
15
Capitania courts are acting solely within their ambit as overseer and do not place one party at an
advantage over the other.
B. Questions of State Action Doctrine Must Be Construed Critically to
Preserve the Requisite Overlap of Public and Private Spheres
The public and private spheres will always collide in judicial proceedings, as the role of
courts is to interpret the laws meaning and act as arbiter over the adversary system. This Court
should find that state action does not exist in privately initiated adoption proceedings. The purpose
of the state action requirement regarding constitutional rights is to preserve individual liberty
among citizens. See Cole, supra at 347. As noted above, Shelley and Reitman are unique outliers
that have been limited to race discrimination in questions of property rights. Expanding these cases
to matters of privately initiated adoptions would amount to state action being found in a broad
array of legal areas, which would ultimately limit individual liberty rights. Furthermore, “[t]he
federal state-action doctrine, by preventing the application of constitutional standards to private
affairs, ensured the states' latitude in regulating them.” Id. The consequential nature of adoptions
that affect parental rights and child welfare is not lost on the state. Indeed, it is the delicate and
lasting nature of such a process that compels court involvement. The role of courts in adoption
proceedings is to ensure the best interests of the child. It would be a disservice to the children in
question to deny any court involvement, just as it would be an undue burden on the state to find
state action where none exists. It would be ill-conceived to find the existence of state action
through mere procedural mechanisms in cases such as the present one, where the biological
father—the custodial and residential guardian of G.H.—along with his wife, have moved for the
wife to adopt a child who already lives with her and calls her “mother.” (R. at 3). It is impossible
to draw a bright line between public and private spheres where courts are involved because cases
will always exist where private actors utilize legal processes.
16
C. Equal Protection Remains Intact Despite Any Existence of State Action in
Capitania’s Private Adoption Proceedings
Whether or not this Court finds state action exists in Capitania’s adoption proceeding is
irrelevant to the ultimate holding of the Court of Appeals of Capitania as Petitioner's claim fails
under both a rational basis and strict scrutiny analysis. For Petitioner’s equal protection claim to
survive she must demonstrate that the laws unfairly differentiate between her and a class of
similarly situated parents. See City of Cleburne, 473 U.S. at 439. However, parents themselves are
not a suspect class and the State can treat different classes of parents differently if in furtherance
of the laws purpose. See Noling, 149 Ohio St.3d at 330. Petitioner cannot demonstrate that any
differentiation in court appointed counsel in Capitania’s adoption statute violates her equal
protection rights.
D. Parents are Not a Suspect Class Requiring A Heightened Level of
Scrutiny
Parents have not been declared a protected class demanding automatic strict scrutiny of
laws that differentiate between them. Troxel, 530 U.S. at 65. Despite Petitioner’s claims to the
contrary, indigent parents who are involved in state initiated abuse, neglect, or dependency
proceedings are not similarly situated to parents involved in privately initiated adoption
proceedings. First, each type of proceeding has a different underlying purpose, in which varying
weight is placed on the outcomes. The purpose of an adoption proceeding is not to “terminate the
rights of the natural parent, but to provide a legal family relationship and home for a child.” In re
Adoption of Brianna Marie D., L-04-1367, 2005 WL 435167, at 3 (Ohio App. 6th Dist. 2005). The
purpose of an abuse, neglect, or dependency proceeding is to ensure the safety and stability of the
child. Id. Although Justice Learned’s dissent points out that in both adoption proceedings and
state initiated parental termination proceedings the outcome is the same: the dissolution of the legal
parent-child relationship. (R. at 24). However, while the outcome for both may be a termination
17
of parental rights, that does not make the situations equivalent. For example, when a state agency
moves to remove the child from parents who are abusive or neglectful the state must take specific
steps to ensure that the child has a safe and stable home environment, and that the agency attempts
to reunify the family. See In re Hayes, 79 Ohio St.3d 46, 48 (1997). This is a far cry from the role
of a biological parent who does not have custody of their child and has not maintained de minimis
contact with the child. As such, the implications of the termination of parental rights under each
type of proceeding should be understood in different contexts.
Second, affirmative state action in abuse, neglect, and dependency proceedings that
terminate parental rights varies greatly from parents who do not have custody and have not
maintained de minimis contact with their biological children. Indeed, due process requirements do
not mandate that indigent parents must always be appointed counsel even in state-initiated
proceedings because the context for such situations is so varied. See Lassiter, 452 U.S. at 24. The
Supreme Court goes on to differentiate between the differences that often exist in state-initiated
termination proceedings, which typically also include criminal charges related to the mistreatment
of the child—which increase the complexity and may increase the need for counsel. Id. at 32.
These same complexities do not exist for parents whose consent is not required under Capitania
Title 400-227 because of their lack of relationship to their biological children. Petitioner grossly
overgeneralizes by claiming that all indigent parents who face the termination of their parental
rights under both private adoption proceedings and state initiated abuse, neglect, and dependency
proceedings are similarly situated requiring the same constitutional safeguards.
E. Strict Scrutiny Only Applies to Parents If A Fundamental Right Is
Infringed
A fundamental right to court appointed counsel for indigent parents in proceedings that
terminate parental rights does not exist. Petitioner argues that because her fundamental parental
18
rights “in the care, custody, and control of their children” are being infringed, such rights
automatically require strict scrutiny. Troxel, 530 U.S. at 65. Yet, the Supreme Court has not found
a need to require counsel anytime a parent faces the termination of their parental rights. See
Lassiter, 452 U.S. at 31. The procedural safeguards written into the Capitania adoption statute
ensure that a biological parent in a private adoption proceeding does not face such an infringement
on their rights so severe as to require counsel.
Consent to the adoption is typically required from the biological parent Under Title 400-
227 of Capitania’s Family Code, unless the court finds “clear and convincing evidence that the
parent has failed without justifiable cause to provide more than de minimis contact with the minor.”
Additionally, revoking consent can only occur when proper notice is given to the biological parent
and after a hearing occurs. Cap. Fam. Code § 400-227; see also In re Jay R., 150 Cal.App.3d at
260. These safeguards ensure that a parent’s fundamental right is not being infringed without due
process. Since Petitioner does not have a fundamental right to counsel in privately initiated
adoption proceedings, this case does not require a strict scrutiny analysis.
F. The Capitania Adoption Statute Withstands Strict Scrutiny
This Court should affirm the decision of the Court of Appeals, which held that even when
operating under the assumption that strict scrutiny applies, Petitioner’s right to equal protection
has not been violated. Even under strict scrutiny, Capitania’s law is narrowly tailored. In any state-
initiated abuse, neglect, or dependency action, the parent is entitled to counsel to ensure that they
have proper support and knowledge of the allegations against them. See In re Jay R., 150
Cal.App.3d at 260. However, such support is not required in adoption proceedings because in
Capitania, parents are required to grant written consent to an adoption. Cap. Fam. Code § 400-226.
As previously stated, Capitania’s adoption statute provides for waivers of parental consent only in
19
those limited circumstances when a parent has proven through a pattern of behavior that they are
not engaged in their child’s life.
Petitioner argues that the statute is not narrowly tailored precisely because in one instance
biological parents are appointed counsel, while no counsel is appointed in privately initiated
adoptions. Petitioner’s assertion is incorrect. The Supreme Court in Lassiter laid out the many
reasons that some cases may require counsel compared to others, specifically pointing to
increasingly complex matters that are more likely to arise in abuse, neglect, and dependency
actions. See Lassiter, 452 U.S. at 24 (such as criminal charges, expert witnesses, or particularly
complex laws). The Capitania statute is unambiguous in its reasoning as to the standards by which
counsel is to be appointed to indigent parents, thus it is narrowly tailored.
Capatinia’s interest in ensuring a safe, stable, and reliable parentage for children without
undue delay is compelling. Capitania’s statutory scheme for adoptions is thus that parental rights
would only be involuntarily terminated in situations where a parent has not maintained de minimis
contact with their child, or otherwise harmed the parent-child relationship. Cap. Fam. Code § 400-
227. Capitania’s interest in adoption proceedings is to consider the best interests of the child,
ensuring they have a stable home environment where they are properly loved, cared for, and can
grow healthily into productive citizens. The purpose of the waiver of consent within the adoption
statute is to prevent extensive prolonging of the process and to minimize conflict around the child.
Petitioner claims that Capitania’s interest as pecuniary is not compelling, and this is true. See
Lassiter, 452 U.S. at 24. However, Capitania’s interest is in the health and welfare of the child, not
primarily on saving the cost of an attorney. Ultimately, fees associated with appointing counsel
will not significantly hurt any person. However, the harm to a child who faces unending and
20
arduous adoption proceedings is lifelong, and sometimes irreparable. As such, Capitania’s interest
in the child’s well-being is of great importance and should be assessed accordingly.
II. Due Process is Flexible in Nature; Thus, a Due Process Right to Counsel Does
Not Exist in a Privately Initiated Adoption Proceeding Under the Eldridge
Factors.
The decision of the Court of Appeals did not violate the Fourteenth Amendment of the U.S.
Constitution because a right to counsel in a privately initiated adoption proceeding is not a clearly
defined constitutional requirement. The Due Process Clause of the Fourteenth Amendment states
in pertinent part that no state shall “deprive an individual of life, liberty, or property without due
process of law.” U.S. CONST. amend. XIV, § 1. Accordingly, a Due Process Clause analysis is
required in all instances where the state is accused of infringing upon fundamental fairness. See
Lassiter, 452 U.S. at 18. Due process protections are rarely strict or unambiguous; rather, they are
flexible in nature and rest heavily on the individual facts of each case. Eldridge, 424 U.S. at 321.
Unlike other legal rules, due process is not concretely fixed by time, place, or circumstances.
Cafeteria and Rest. Workers Union, Loc. 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961).
Determining the limits of due process protections in privately initiated adoption
proceedings requires courts to analyze and balance several competing interests, including the
private rights of biological parents, the ultimate outcome of terminating parental rights through
private adoption proceedings without a right to counsel, and the interest of the government in
conducting an economically and administratively efficient adoption with, most importantly, the
best interests of the child in mind. When courts weigh the interests of each party, they ensure that
a just outcome is reached. Under Eldridge, courts should assess three key factors to determine if
Capitania has violated Petitioner’s due process rights by choosing not to appoint counsel:
(1) the private interest that will be affected by the official action; (2) the risk of an
erroneous deprivation of such interest through the procedures used, and probable
21
value, if any, of additional procedural safeguards; and (3) the Government's
interest, including the fiscal and administrative burdens that the additional or
substitute procedures would entail.
Eldridge, 424 U.S. at 321.
The Eldridge factors provide a clear framework for balancing the various competing
interests at stake in adoption proceedings. While the Eldridge factors assess due process
protections under the U.S. Constitution, such factors still function effectively in Capitania, as
Capitania’s constitutional provision for due process closely aligns with that of the Fourteenth
Amendment. Cap. Const. Art. I, § 2.
Ultimately, through Eldridge, this court should affirm the decision of the lower court and
find that Capitania has not violated Petitioner’s due process rights by not appointing counsel to her
in a privately initiated adoption proceeding. While the right to parenthood is fundamental, that
right does not automatically extend to government appointed counsel. Lassiter, 452 U.S. at 27.
First, Petitioner’s private interests in maintaining parenthood do not rise to a sufficient level to
justify an appointment of counsel. Next, the current procedures for facilitating an adoption
proceeding and determining whether counsel is required are satisfactory in their current state.
Finally, the state’s interest in conducting an efficient and effective adoption proceeding that favors
the best interests of the child outweighs the remaining Eldridge factors. Therefore, this court
should find that Petitioner has no due process right to counsel in a privately initiated adoption
proceeding.
A. Petitioner’s Private Interest in Maintaining Her Parental Rights
Are Not Compelling Because the Lack of Complexity and Weight
of the Facts Against Her Fail to Justify a Need for Counsel
This Court ought to find that petitioner’s private interest in avoiding parental termination
does not sufficiently outweigh the remaining factors in the Eldridge test. Petitioner’s interest in
receiving the assistance of counsel is not a right fundamentally protected under either the Capitania
22
or U.S. Constitutions’ Due Process Clause. Id. A right to parenthood is not equivalent to a right
to counsel under due process protections. While procedural due process “imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests” under the
Fourteenth Amendment, the government’s decision to deny counsel does not deprive Petitioner of
a right to that caliber. Eldridge, 424 U.S. at 332. Undoubtedly, the private interests of a parent
facing the risk of termination of parental rights are significantly important to earn a place amongst
the Eldridge factors. Frequently, courts have found that “a parent's desire for and right to ‘the
companionship, care, custody, and management of his or her children’ is an important interest.”
Stanley v. Illinois, 405 U.S. 645, 651 (1972). However, a right to parenthood and a right to counsel
are distinct. In Lassiter, the Supreme Court looked at the facts of the case and weight of evidence
against the petitioner when considering whether there was sufficient ambiguity or complexity that
would create a need for counsel. Lassiter, 452 U.S. at 32 (holding “no expert witnesses testified
and the case presented no specially troublesome points of law… a lawyer might have done more
with the argument… [but] the absence of counsel's guidance on this point did not render the
proceedings fundamentally unfair”). Similarly, while an attorney might have presented the facts
in a more persuasive way than Petitioner did, this does not change the facts the show Petitioner’s
lack of contact with G.H. As such, Petitioner’s private interest in a right to counsel does not
substantially overpower the remaining Eldridge factors.
Further, being indigent is not reason enough for a right to counsel to exist. Matter of J.M.P.,
151 Ohio St.3d 1515, 2018-Ohio-365, (2017). In the Matter of J.M.P., the petitioner claimed that
because he was indigent, the court owed him a right to counsel in order to protect his parent-child
relationship. Id. However, an interest in parenthood does not automatically give rise to a right to
counsel. Id. As stated in Eldridge, a right to counsel will only exist where a physical liberty is at
23
stake. Eldridge, 424 U.S. at 332. While a right to parenthood is important, losing that right does
not physically impair an individual in the same way a criminal conviction might. Further, the right
to parenthood is not an affirmative right. Generally, parents are entitled to the right of “care and
custody” of their children. In re Adoption of Masa, 23 Ohio St.3d 163, 164 (1986). However, if a
parent engages in actions likely to lead to the attenuation and termination of parental rights, as
Petitioner has done in the present case, that parent forfeits the right to parenthood.
Petitioner not only fails to demonstrate that any of her physical liberties are at stake, but
also her private interests are still considered through Capitania’s statutory structure and the court.
Thus, this factor does not add weight to Petitioner’s claim based on the Eldridge balancing test.
Because Petitioner’s private interests do not rise to a level sufficient to justify a right to counsel,
the state is not required to appoint counsel to her. Petitioner’s argument that she is indigent lacks
weight if not supplemented by additional information. For example, her life and liberty are not
presently at risk, and will not be at risk even in the case that her parental rights are terminated.
Petitioner’s due process rights are upheld, and she experienced a fair process that considers her
private interests without the assistance of appointed counsel.
B. The Procedural Structure of Privately Initiated Adoption Proceedings in
Capitania Provided Ample Opportunity for Petitioner to Make Her Case
Before a Judge, Thereby Adhering to the Due Process Clause of the
Fourteenth Amendment
This court should find that the current framework for facilitating privately initiated
adoptions does not violate due process protections. In a privately initiated adoption proceeding,
due process fundamentally requires an opportunity for a parent to be heard “at a meaningful time
and in a meaningful manner.” Eldridge, 424 U.S. at 333. Here, Petitioner was given ample
opportunity to be heard; such an opportunity is enough to fulfill due process requirements, whether
or not counsel is appointed.
24
Adoption proceedings which function to terminate the fundamental right to parenthood
must comply with due process. In re Adoption of Greer, 70 Ohio St.3d 293, 298 (1994).
Accordingly, courts should be “mindful of the gravity” of the adoption and the impact it will have
on all involved parties. In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351 (2010).
However, neither due process rights, nor the protection of the interests of all parties in the long-
term, require that counsel be appointed in order for a parent to be heard. So long as the procedure
for a private adoption is reasonably fair, a jurisdiction has the flexibility to determine the details
of such a procedure. In the instant case Capitania’s adoption procedure adequately provides notice
and the ability to make her case in a hearing. (R. at 4-5).
The procedural structure of adoption proceedings in Capitania provided ample opportunity
for Petitioner to make her case before a judge. Some form of hearing is required in any instance
where an individual is about to be deprived of a right or interest. Wolff v. McDonnell, 418 U.S.
539, 557-558 (1974). Because Petitioner was at risk of losing her right to parenthood, she was
provided the opportunity to participate in a hearing in probate court. Petitioner made her case
before a judge, and the judge ultimately found that her parental rights should be terminated based
on the totality of the circumstances after following the guidelines laid out in Capitania’s provisions
on consent. Such a decision regarding G.H.’s placement was effectively formed without having to
appoint counsel to petitioner.
Capitania’s procedure for privately initiated adoptions is effectively delineated through the
Capitania Family Code. The lower court’s decision not to appoint counsel to Petitioner was rooted
in careful consideration under current procedural standards. In situations unlike the present case,
consent is typically required by the biological mother for an adoption of the minor . Cap. Fam.
Code § 400-226(A). However, consent is not required when the biological mother has “failed
25
without justifiable cause to provide more than de minimis contact with the minor.” Cap. Fam.
Code § 400-227(A). Consent may also be waived where a parent does not adequately provide for
the “maintenance and support” of the minor for at least one year. Id. Such provisions ensure that
the behavior of a parent is assessed in its totality and that the adoption procedure provides a
meaningful forum for involved and proactive parents to be heard. In Lassiter, the Supreme Court
held that the petitioner’s ability to represent her case at trial, despite not being appointed the
attorney she requested, satisfied her due process rights. Lassiter, 452 U.S. at 29; see also In re
Adoption of I.M.M., 2016 WL 5092511, 2 (noting the biological father was brought from prison to
the adoption hearing and “was able to meaningfully participate in same” thus his due process rights
were met).
While Petitioner argues that Capitania’s adoption procedures should require appointed
counsel for indigent people, merely being indigent does not warrant an overhaul of Capitania’s
statutory procedure for facilitating adoptions. An indigent person ordinarily does not have a due
process right to appointed counsel in a civil case. M.L.B., 519 U.S. at 119. Indigent citizens are
only entitled to counsel in civil matters if such an appointment of counsel is statutorily or
constitutionally required. In re Adoption of Drake, 2003 WL 231298, at 2. Capitinia’s statutory
scheme unequivocally distinguishes between privately initiated versus state initiated proceedings
establishing its alignment with the federal due process requirements in Lassiter, holding privately
initiated actions as distinct. Thus, Petitioner’s status as indigent has no bearing on the due process
analysis.
C. The Government Has a Substantial Interest in Encouraging the Child’s
Custodians to Provide a Permanent, Stable, Safe, and Loving
Environment Where the Child Can Flourish
The government’s interest in effectively facilitating the adoption proceeding efficiently,
combined with the fair procedures of the adoption process, outweighs Petitioner’s private interest
26
in maintaining the parent-child relationship. The role of the government differs depending on how
the adoption proceeding is initiated. In a privately initiated adoption, as is presently before the
court, the state merely acts as a neutral arbiter whose primary interest is that of the child.
Conversely, in a state initiated adoption proceeding, the state takes on a far more involved role
which requires a more substantial level of control. Yet, even when the full force and weight of the
state is moving to terminate an individual’s parental rights, whether due process requi res that a
court should appoint counsel is still a fact-based inquiry. Lassiter, 452 U.S. at 33.
The primary government interest by which the third Eldridge factor should be assessed is
the interest in a fair and correct outcome, measured by what the state believes is in the best interest
of the child. In re Adoption of Ridenour, 61 Ohio St.3d at 328. Petitioner argues that the State’s
interest is to facilitate a speedy, cost-effective adoption which will ultimately promote the welfare
of the child. Petitioner is correct in pointing out that concerns with funding are merely pecuniary
and alone do not hold significant weight in the balancing test. Lassiter, 452 U.S. at 28. To be sure,
this characterization of the State’s role in facilitating privately initiated adoptions ignores the
underlying purpose and nature of adoption as a statute. In re Adoption of Ridenour, 61 Ohio St.3d
at 324.Undeniably, pecuniary interests will be a background consideration when determining
requests for counsel, and were it the only interest, that alone would not suffice. The purpose of
court oversight for adoptions is to prevent negotiations over children which result in the bartering
of such children, like the sale of mere property.
Balancing the state’s interests in a fairly decided adoption requires this court to also
consider the parent’s interest, whose idea of the child’s placement may directly contradict the
views of the government. However, if the parent’s efforts in support of the child are insufficient,
the state’s interest in the child will reign supreme. Here, Petitioner’s minimal involvement in
27
G.H.’s life indicates her lack of interest in caring for him in the long-term. After Petitioner’s
custody of G.H. was revoked, Petitioner did not sufficiently maintain the level of contact and
involvement necessary under Capitania law to be granted consent in the adoption proceeding.
Notably, Petitioner did not file for her own Order of Visitation, relying on the fact that she had
access to G.H. during court-approved visits between G.H. and the maternal grandparents who were
interested in keeping Petitioner involved. (R. at 5). An Order of Visitation establishes a parent’s
interest in maintaining individual contact with the child in the long term; Petitioner’s inaction
indicates the opposite. Petitioner’s decision to not file for an Order of Visitation or share custody
indicates that she had no legitimate interest in providing a stable and supportive home for G.H. in
the future.
Further, Petitioner did not pay child support to G.H.’s father during the time that he was in
custody of G.H. (R. at 4). While there was no court order requiring that Petitioner pay child
support, a substantial showing of support is still necessary to prove involvement in the child’s life.
Matter of J.M.P., 151 Ohio St.3d 1515, at 2. Petitioner’s failure to pay child support—or to offer
support informally through any other means—reinforces the argument that her consent would not
be required in a privately initiated adoption proceeding. The forthright facts in this case are
distinguishable from the more complex situations which the Supreme Court pointed out in
Lassiter. Lassiter, 452 U.S. at 33. Petitioner’s claim that she has supported G.H. through giving
gifts for appropriate holidays does not rise above de minimis contact. Holiday gifts do not represent
sufficient care for G.H. and his well-being. In re Adoption of I.M.M., 2016 WL 5092511, at 4
(holding occasional gifts and unplanned meetings were not sufficient contact to surmount the de
minimus required under Ohio’s adoption statute). Child support payments would contribute to
G.H.’s safety, comfort, nutrition, education, or any other major need that might satisfy the
28
language of the Capitania statute. Moreover, paying child support demonstrates an interest in
reestablishing a supportive role through legal means and an assertion of parental rights. The
obvious lack of action on Petitioner’s part towards establishing her parental rights demonstrate no
legal complexity requiring the assistance of court appointed counsel. The State’s interest in
providing G.H. a stable home outweighs Petitioner’s request for counsel.
Because Petitioner’s behavior indicates that she is unable to put G.H.’s best interests first,
the State as mediator must consider the protection of G.H.’s interests, especially when they may
conflict with those of the biological parent. The state must prioritize placing G.H. in a home in
which he can thrive. To require appointed counsel in this case, and in similar cases, would
convolute the adoption process, contribute to conflict in the child’s life, and prolong their transitory
position leading to increased stress for the minor child. Further, changing procedures to require
appointed counsel would intensify the state’s involvement, when its role should be limited to that
of a mediator or facilitator of the privately initiated adoption.
29
CONCLUSION
This Court should affirm the Court of Appeals of Capitania. Deciding in Petitioner’s favor
would create procedural upheaval among all Capitania courts, requiring the procurement of
additional legal processes, allocating additional funds, and requiring more hands-on public
assistance for matters that the Constitution has already ruled outside the scope of where the
government should operate. The process in which appointing counsel itself is a complicated
governmental maneuver. While necessary when the government is the actor responsible for
initiating such processes, here the government had no active role in initiating the adoption of G.H.
Respectfully Submitted
/s/ Team 15
Team 15
Counsel for the Respondent
30
APPENDIX
[Materials can be found in the print version of the brief.]