No. 19-0514

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In the Supreme Court of Capitania ________________________________________________________

In re G.H

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On Petition for Writ of Certiorari to the Supreme Court of Capitania

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PETITIONER’S BRIEF ON THE MERITS

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Team 6

Counsel of Record Attorneys for Petitioner February 3, 2020

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i

QUESTIONS PRESENTED

I. Under the equal protection provisions of the federal and state constitutions, must the state provide appointed counsel for an indigent parent when a private party initiates an adoption proceeding that will terminate her parental rights?

II. Under the due process provisions of the federal and state constitutions, must the state provide appointed counsel for an indigent parent when a private party initiates an adoption proceeding that will terminate her parental rights?

ii

LIST OF PARTIES

Carolyn Hooper, Biological Mother (Petitioner)

G.H., Child

Morgan Johnson, Biological Father

Arlene Johnson, Stepmother (Adoptive Parent)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................................................................................... i

LIST OF PARTIES ...................................................................................................................... ii

TABLE OF CONTENTS ............................................................................................................ iii

TABLE OF AUTHORITIES ....................................................................................................... v

OPINIONS AND ORDERS ENTERED ................................................................................... vii

CONSTITUTIONAL PROVISIONS AND STATUTES ........................................................ vii

STATEMENT OF THE CASE .................................................................................................... 1

I. Statement of Facts .............................................................................................................. 1

II. Procedural History ......................................................................................................... 3

SUMMARY OF THE ARGUMENT .......................................................................................... 4

ARGUMENT ................................................................................................................................. 5

I. The state must provide Hooper with appointed counsel because the denial of Hooper’s right to counsel violates constitutional equal protection mandates. .................... 5

A. A private adoption proceeding constitutes sufficient state action to implicate equal protection rights. ......................................................................................................... 8

B. The classification drawn by Capitania law is not narrowly tailored to serve a compelling state interest. ....................................................................................................... 9

1. The strict-scrutiny standard applies to classifications involving parental rights because the parent-child relationship is a fundamental right. .............................................. 9

2. Individuals facing termination of their parental rights are similarly situated regardless of the identity of the party initiating the proceedings against them. .................................. 10

iv

3. No compelling state interest justifies the differential treatment of private adoptions and state-initiated termination proceedings. ...................................................................... 11

C. In response to an unconstitutionally restrictive classification, the appropriate remedy requires an expansion of the right to all similarly situated persons. ................ 13

II. The state must appoint counsel for Hooper because failing to do so violates her due process rights under the federal and state constitutions. .................................................... 14

A. The court’s participation in the adoption process implicates due-process rights under the Fourteenth Amendment and the state due-course-of-law provision. ............ 15

B. The state has infringed on Hooper’s fundamental right to parent her child without a compelling state interest in doing so. ................................................................ 17

C. The state has deprived Hooper of a significant liberty interest without the required procedural due process considerations. ............................................................. 18

1. Parental rights are fundamental to the individual’s liberty and happiness. ................ 19

2. The court is less likely to make an erroneous decision regarding parental rights when counsel is present. .............................................................................................................. 20

3. The government has little interest in failing to provide counsel. ............................... 21

CONCLUSION ........................................................................................................................... 23

APPENDIX .................................................................................................................................. 24

v

TABLE OF AUTHORITIES

US. SUPREME COURT CASES

Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994, 2005, 155 L.Ed.2d 984 (2003) ............ 17

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) .................................... 6

Cleburne, 473 U.S. at 440 ......................................................................................................... 6, 11

Ex parte Commonwealth of Virginia, 100 U.S. 339, 347, 25 L.Ed. 676 (1879) ........................... 16

Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973) ............... 19

Gideon v. Wainwright, 372 U.S. 335, 340, 83 S.Ct. 792, 794, 9 L.Ed.2d 799 (1963). ................ 20

Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970) .................. 18

Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975).............. 21

Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986) ...... 21

Mathews v. Eldridge, 424 U.S 319 (1976). ....................................................................... 15, 19, 21

Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ............................................................................. 14

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) .............. 18

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) .................................................................................... 6

Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ............................ 17

Reno v. Am. Civ. Liberties Union, 521 U.S. 844 .......................................................................... 12

Santosky v. Kramer, 455 U.S. 745, 774, (1982) ..................................................................... 10, 17

See Plyler v. Doe, 457 U.S. 202, 216 (1982) .................................................................................. 6

Shelley v. Kraemer, 334 U.S. 1, 19 (1948) ..................................................................................... 9

Troxel v. Granville, 530 U.S. 57 (2000). ................................................................................ 15, 18

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 804 (2000) ........................... 7

Welsh v. United States, 398 U.S. 333, 361 (1970) ........................................................................ 13

vi

Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) ................. 18

Zockert v. Fanning, 800 P.2d 773, 779 (1990) .... 13, 16 Edmonson v. Leesville Concrete Co., 500

U.S. 614, 619 (1991) ................................................................................................................. 16

STATE COURT CASES

Conley v. Shearer, 64 Ohio St.3d 284, 1992-Ohio-133, 595 N.E.2d 862 (1992). .......................... 6

Eppley v. Tri-Valley Local Sch. Dist. Bd. of Educ., 122 Ohio St.3d 56, 2009-Ohio-1970, 908

N.E.2d 401, ¶ 11. ......................................................................................................................... 6

Glass v. Glass, 69 Ohio Law Abs. 333, 335, 125 N.E.2d 375, 377 (4th Dist.1952). ..................... 8

Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 5 (2005). ............ 15

Howard v. F’erreri, 70 Ohio St.3d 587, 1994-Ohio-130, 639 N.E.2d 1189 (1994) ..................... 16

In re Adoption of A.W.S., 377 Mont. 234, 2014 MT 322, 339, P.3d 414, ¶ 15 ............................. 11

In re Adoption of K.L.P., 198 Ill. 2d 448, 465 (2002) ..................................................................... 9

In re Adoption of L.T.M., 214 Ill. 2d 60, 73 (2005) ............................................................ 8, 11, 12

In re Adoption of Ridenour, 61 Ohio St.3d 319, 320, 574 N.E.2d 1055, 1057 (1991) ................. 21

In re Martin, 76 Ohio Law Abs. 219, 140 N.E.2d 623, 624 (8th Dist.1957) ................................. 8

In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 55 (6th Dist.1991). ...................................... 20

Lassiter v. Dep't of Soc. Serv. of Durham County, N. C., 452 U.S. 18, 28, (1981). .............. passim

Matter of Adoption of K.A.S., 499 N.W.2d 558, 564 (N.D.1993) ................................. 7, 12, 14, 22

Matter of Adoption of Y.E.F., 5th Dist. No. 18 CAF 09 0070, 2019-Ohio-449, 130 N.E.3d 1044,

¶ 24, appeal allowed sub nom. In re Adoption of Y. E. F., 155 Ohio St.3d 1467, 2019-Ohio-

2100, 122 N.E.3d 1297, ¶ 24 (2019). ........................................................................................ 11

Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 564, 2000-Ohio-488,

733 N.E.2d 1152 (2000) .............................................................................................................. 7

vii

S.A.J.B., 679 N.W.2d 645, 651 (Iowa 2004) ................................................................................. 14

State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29 (2017) ................ 6, 14

State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶ 11 (2016) ....................... 14

State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13 (2002) ..... 7, 9, 11

STATUTES

Cap. Rev. Code § 33-400.322 ................................................................................................. 4, 5, 9

Cap. Rev. Code § 33- 400.235 ............................................................................................ 4, 10, 19

CONSTITUTIONAL PROVISIONS

Cap. Const. art. I, § 2 ................................................................................................................ 6, 14

U.S. Const. amend. XIV, § 1 ................................................................................................ 5, 8, 14

OPINIONS AND ORDERS ENTERED

The opinion of the Harrison County Probate Court is unpublished. The opinion of the

Court of Appeals of Capitania (“Court of Appeals”) is also unpublished, but it is available in

Appendix B and at In re G.H., No. 19-0154 (Cap. Ct. App. October 14, 2019).

CONSTITUTIONAL PROVISIONS AND STATUTES

This case involves portions of the Fourteenth Amendment to the U.S. Constitution

and Article I, Section 2 of the Capitania Constitution. This case also involves the following

state statutes: Cap. Rev. Code § 33-400.235 and Cap. Rev. Code § 33-400.322. Relevant

portions of the U.S. Constitution, the Capitania Constitution, and statute are reproduced in

Appendix A.

STATEMENT OF THE CASE

I. Statement of Facts

Petitioner Carolyn Hooper gave birth to G.H. on May 14, 2015. R. at 1. Mother and

G.H.’s father, Morgan Johnson, were never married. R. at 1. All parties resided in Capitania at

the time of birth. R. at 2. After an administrative determination of paternity, the Harrison County

Child Support Enforcement Agency entered a child support order against Father. R. at 1. No

party filed a Juvenile Court custody action. R. at 1.

Although G.H. lived with Mother, the child had regular contact with Father. R. at 1.

Mother and Father made a visitation agreement by which Father saw the child every other

weekend. R. at 2. Mother’s parents were also involved in G.H.’s life and cared for the child

while Mother worked. R. at 2. Mother worked part-time at a local department store earning

minimum wage. R. at 3. Mother also received Medicaid and food assistance from the State of

Capitania. R. at. 3.

In January of 2017, Mother began dating and living with her boyfriend, John Mack. R. at

2. Mother’s parents and Father expressed concerns regarding Mother’s situation. R. at 2. On

April 2, 2017, a neighbor called police to report a potential domestic violence situation at

Mother’s house. R. at 2. Upon entering the house, police found drug paraphernalia, scales, and

drug substances in the kitchen. R. at 2. After a more thorough search of the house, police arrested

Mother and Boyfriend for drug trafficking and manufacturing methamphetamine. R. at 2.

On the night of Mother’s arrest, Children’s Services responded to a call and removed

G.H. from Mother’s residence. R. at 2. Initially, Children’s Services placed G.H. with Mother’s

parents. R. at 2. Father then filed for custody of G.H. in the Harrison County Juvenile Court. R.

2

at 2-3. Additionally, Mother’s parents filed for visitation with G.H. on the same case number. R.

at 3. The Juvenile Court designated Father as the residential and custodial parent of G.H. and

ordered visitation for Mother’s parents. R. at 3.

Mother cooperated with prosecutors and divulged information regarding Boyfriend’s

drug transactions. R. at 3. As a first-time offender, Mother received a sentence of 18 months in

prison. R. at 3. The court conditioned Mother’s release on her continued participation in

outpatient drug treatment for one year. R. at 3. Mother’s parents brought G.H. to visit Mother

nine times during her sentence. R. at 3. Mother was released from prison on January 7, 2019. R.

at 3.

Following her release, Mother moved into low-income housing, participated in her

outpatient treatment and recovery, and met with her parole officer. R. at 3-4. Mother did not file

an order for her own visitation but instead saw G.H. during her parents’ visitation. R. at 4. The

court terminated the initial child support order because Mother was incarcerated at the time of

the custody hearing. R. at 4. Because the court has not ordered Mother to pay any child support,

she has not done so. R. at 4. However, in February of 2019, Mother obtained a minimum-wage

job working part-time at a local fast-food restaurant. R. at 4. After finding the job, Mother has

purchased food, clothing, and gifts for G.H. R. at 4.

On December 7, 2017, Father married Arlene Johnson (fka Beltram). R. at 3. Arlene

developed a step-mother relationship with G.H. R. at 3. On March 4, 2019, Step-mother filed a

Petition for Adoption of G.H. in Harrison County Probate Court. R. at 4. Step-mother’s petition

indicated that the court did not need Mother’s consent because Mother had neither maintained

contact with G.H. nor provided support for the child in the last year. R. at 4.

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II. Procedural History

Mother received notice of the Petition for Adoption on March 6, 2019. R. at 4. Mother

reached out to her local legal aid office, but legal aid could not take her case. R. at 4. Legal aid

did advise Mother that she should object to the adoption in writing and request appointment of

counsel, citing her right to counsel in a case involving potential loss of parental rights. R. at 4.

Mother submitted a pro se document on March 8, 2019. The document described Mother’s

contact with G.H. and her financial support in the form of gifts and food. R. at 4. Mother also

asked the court to appoint an attorney. R. at 4-5.

On April 4, 2019, the parties convened for a final hearing on adoption. R. at 5. Mother

repeated her request for appointed counsel, explained her indigence, and stressed the unfairness

of defending her parental rights without counsel. The Probate Court Judge denied Mother’s

request noting that the right to appointed counsel exists only in adoptions initiated by the State of

Capitania, and not in private adoptions like that of G.H. R. at 5.

On April 22, 2019, the court held a final hearing on consent and best interest. R. at 5. The

court found that Mother had a duty to pay informal child support of some form to Father. R. at 5.

Because Mother failed to do so, the court found that the adoption should be granted without

requiring Mother’s consent. R. at 5. The court also found that granting the adoption would be in

the best interest of G.H. due to the child’s connection with Step-mother. The court filed a final

order of adoption on April 26, 2019.

Mother contacted legal aid and detailed the court’s denial of her right to counsel. R. at 5.

Legal aid agreed to represent Mother and filed a notice of appearance, a motion for stay, and a

notice of appeal on May 3, 2019. 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 19.

4

SUMMARY OF THE ARGUMENT

The state of Capitania must provide counsel for indigent parents whose parental rights are

at stake in a private adoption proceeding. This right to counsel is guaranteed under the federal

Constitution and the Capitania Constitution through the respective Equal Protection and Due

Process clauses.

First, the equal protection rights of indigent parents require that the state of Capitania

provide appointed counsel in private adoption proceedings. The state of Capitania affords the

right to counsel to indigent parents facing the termination of their parental rights in a state-

initiated proceeding. Cap. Rev. Code § 33-400.322. However, no similar provision exists for

indigent parents in private adoption proceedings. Equal protection requires that similarly situated

persons be treated similarly. Private adoptions and state-initiated proceedings involve the same

consequences and the same fundamental right to enjoy the parent-child relationship. As such, the

parents in these situations are similarly situated and should be treated the same. The legislature

may create disparate classes, but only where the classification supports a compelling state

interest. While a state may have a pecuniary interest in denying the right to counsel in private

adoptions, this interest is not compelling. The fundamental parental rights at stake far outweigh

any financial interest. Because the classification does not serve a compelling state interest, all

indigent parents facing the loss of parental rights must be treated similarly. Rather than denying

counsel to all, the appropriate remedy would be to expand this right to all indigent parents.

Second, the State of Capitania violates Hooper’s due process rights under the United

States Constitution and the Capitania Constitution by failing to appoint her with counsel in a

proceeding that will terminate her parental status. The appellate court majority opinion contends

that private adoptions do not require the same due process guarantees that a state-initiated

5

adoption would. However, every adoption, whether public or private, requires the State’s final

approval to render it official. Therefore, the State’s participation in the process is as crucial to a

private adoption as it is to a public one. Consequently, there is sufficient state action to implicate

Hooper’s due process rights. This action violates Hooper’s substantive due process rights by

unduly depriving her of her fundamental right to maintain the care and custody of her child. It

also violates her procedural due process rights by depriving her of a liberty interest in the

relationship with her child. By failing to appoint Hooper with counsel, the state has deprived her

of a chance to be heard before terminating her relationship with her child and has not shown a

compelling state interest in doing so. If the state were to provide indigent parents with counsel,

parents would have the chance to meaningfully defend their fundamental parental rights.

Therefore, this court should reverse and remand with instructions to appoint counsel for

G.H.’s indigent mother.

ARGUMENT

I. The state must provide Hooper with appointed counsel because the denial of Hooper’s right to counsel violates constitutional equal protection mandates.

Denying Hooper’s right to counsel violates her equal protection rights because Capitania law

unjustifiably differentiates private adoption proceedings from state-initiated proceedings

involving the same potential termination of parental rights. Capitania law affords appointed

counsel to an indigent parent facing termination of her parental rights in proceedings initiated by

the state. Cap. Rev. Code § 33-400.322. However, no similar statute affords counsel to an

indigent parent in a private adoption proceeding. Capitania’s disparate classification of private

adoptions denies adoption respondents like Hooper equal protection of the laws.

The federal Equal Protection Clause states: “No state … shall deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection

6

Clause of the state of Capitania similarly provides: “All political power is inherent in the people.

Government is instituted for their equal protection and benefit ….” Cap. Const. art. I, § 2.

Because the two equal protection clauses are “functionally equivalent,” both clauses require the

same analysis. State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29 (2017)

citing Eppley v. Tri-Valley Local Sch. Dist. Bd. of Educ., 122 Ohio St.3d 56, 2009-Ohio-1970,

908 N.E.2d 401, ¶ 11.

Equal protection essentially dictates that “all persons similarly situated should be treated

alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “So long as the

laws are applicable to all persons under like circumstances and…operate alike upon all persons

similarly situated, it suffices the constitutional prohibition against the denial of equal protection

of the laws.” Conley v. Shearer, 64 Ohio St.3d 284, 1992-Ohio-133, 595 N.E.2d 862 (1992). The

equal protection clauses do not, however, prevent a state from creating different classes of

people. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection Clause does not

forbid classifications. It simply keeps governmental decisionmakers from treating differently

persons who are in all relevant respects alike.”).

Importantly, legislative classifications must comply with a standard of strict scrutiny if

the classification implicates a fundamental right. Generally, courts grant the legislature

substantial deference in making these classifications. See Plyler v. Doe, 457 U.S. 202, 216

(1982); see also Cleburne, 473 U.S. at 440 (“When social or economic legislation is at issue, the

Equal Protection Clause allows the States wide latitude.) “The general rule is that legislation is

presumed to be valid and will be sustained if the classification drawn by the statute is rationally

related to a legitimate state interest.” Cleburne, 473 U.S. at 440. However, where a classification

7

involves a fundamental right, courts conduct a strict-scrutiny inquiry. State v. Thompson, 95

Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13 (2002).

The strict-scrutiny standard requires that legislative classifications “be narrowly tailored

to serve a compelling state interest.” Id. The government bears the burden of justifying its

classification by showing a compelling interest. Painesville Bldg. Dept. v. Dworken & Bernstein

Co., L.P.A., 89 Ohio St.3d 564, 2000-Ohio-488, 733 N.E.2d 1152 (2000). A court will only

uphold a legislative classification that is shown to be less restrictive than any other alternative.

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).

Because the parental rights implicated in this case are fundamental, the strict-scrutiny

standard applies. The Supreme Court of North Dakota described the right to parent one’s child as

a fundamental constitutional right “of the highest order.” Matter of Adoption of K.A.S., 499

N.W.2d 558, 564 (N.D.1993). Under this strict-scrutiny standard, Capitania’s disparate treatment

of adoption respondents violates equal-protection mandates. This Court should reverse the

decision of the Court of Appeals of Capitania and remand for a new trial with instructions to

appoint counsel for three reasons. First, private adoption proceedings constitute state action and,

as such, are subject to the Equal Protection Clause. Second, the classification drawn by Capitania

law is not narrowly tailored to serve a compelling state interest. Third, the rights granted under

Capitania’s restrictive classification should be expanded rather than diminished.

8

A. A private adoption proceeding constitutes sufficient state action to implicate equal protection rights.

In order to determine whether an action violates a constitutional right, we must first

determine whether the action implicates a constitutional right. The Fourteenth Amendment

applies only to states. U.S. Const. amend. XIV, § 1. Thus, “[s]tate action is a precondition of

invoking the equal protection clause ….” In re Adoption of L.T.M., 214 Ill. 2d 60, 73 (2005).

Private adoptions involve multiple state actions that trigger the Equal Protection Clause.

First, Hooper does not challenge the initiation of the proceedings but rather challenges

the final order terminating parental rights. A private adoption is not valid until a state judge

enters the final order. No party other than the state has the power to sever the parent-child

relationship so finally and officially. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). An indigent

parent challenging a private adoption “resists the imposition of an official decree extinguishing,

as no power other than the State can, her parent-child relationships.” Id. at 117, fn 8. The identity

of the party bringing suit does not affect the ultimate state action—the court order terminating

parental rights.

Second, the legislature plays an integral role in the adoption process. Adoption is a

creature of statute that cannot occur without the involvement of the legislature. In re Martin, 76

Ohio Law Abs. 219, 140 N.E.2d 623, 624 (8th Dist.1957). Adoption “does not arise under the

common law” and only exists as defined by the legislature. Glass v. Glass, 69 Ohio Law Abs.

333, 335, 125 N.E.2d 375, 377 (4th Dist.1952). Furthermore, the suspect classification in this

case comes directly from the Capitania Family Code. By challenging the constitutionality of the

disparate treatment imposed by Capitania statutes, Petitioner directly challenges the state’s

legislative action.

9

Third, U.S. Supreme Court precedent supports the conclusion that private adoptions

involve sufficient state action to trigger the Equal Protection Clause. In Shelley v. Kraemer, the

Court found that the “enforcement of [racially] restrictive agreements by the state courts”

constituted state action that violated the Fourteenth Amendment. 334 U.S. 1, 19 (1948). The

Court emphasized that “but for the active intervention of the state courts,” the restrictive

agreements would have no effect. Id. Similarly, private adoptions require judicial involvement.

Only the courts have the authority to execute and enforce adoptions. In re Adoption of K.L.P.,

198 Ill. 2d 448, 465 (2002) (“Prospective adoptive parents cannot achieve their goal of

parenthood by contract or other private means; they must involve the court.”). A state acts

through its executive, legislative, or judicial officials. Shelley, 334 U.S. at 14. A court order

granting a Petition for Adoption is a state action carried out by the judicial branch of the state.

B. The classification drawn by Capitania law is not narrowly tailored to serve a compelling state interest.

Capitania law creates two classes of indigent parents—those involved in a state-initiated

proceeding and those involved in a private adoption proceeding. In both proceedings, parents

face the termination of their parental rights. However, the state only affords counsel to indigent

parents engaged in state-initiated proceedings. Cap. Rev. Code § 33-400.322. This distinction

violates the equal protection rights of adoption respondents like Hooper because the

classification is not narrowly tailored to serve a compelling state interest.

1. The strict-scrutiny standard applies to classifications involving parental rights because the parent-child relationship is a fundamental right.

The rational-basis test does not apply to suspect classifications that involve fundamental

rights. Where a classification implicates a fundamental right, courts evaluate the legislation with

strict scrutiny. Thompson, at ¶ 13. The strict-scrutiny standard applies in this case because the

10

denial of counsel for an indigent parent in adoption proceedings implicates her fundamental

parental rights.

The unequal treatment of indigent parents imposed by Capitania law affects fundamental

parental rights. Courts have long recognized the fundamental nature of the parent-child

relationship. “The interest of parents in their relationship with their children is sufficiently

fundamental to come within the finite class of liberty interests protected by the Fourteenth

Amendment.” Santosky v. Kramer, 455 U.S. 745, 774, (1982) (Rehnquist, J., acknowledging

majority opinion in dissent). “Parental status termination is ‘irretrievabl[y] destructi[ve]’ of the

most fundamental family relationship.” M.L.B., 519 U.S. at 104 quoting Id. at 753. In both

adoption proceedings and state-initiated proceedings, a parent faces the total severance of her

relationship with her child. These proceedings not only infringe on parental rights but instead

seek to remove the interest entirely. Id. at 759. Therefore, the strict-scrutiny standard applies to

the Capitania statute implicating this fundamental right.

2. Individuals facing termination of their parental rights are similarly situated regardless of the identity of the party initiating the proceedings against them.

The parents involved in private adoptions face the same challenges and potential

consequences as the parents involved in state-initiated proceedings. Regardless of who brings the

action, the effect of both proceedings is the same—termination of parental rights. The Capitania

Family Code describes the effects of adoption as: “[relieving] the biological or other legal

parents of the adopted person of all parental rights and responsibilities.” Cap. Rev. Code § 33-

400.235. The identity of the party initiating the action does not change the fact that respondent

parents in both private adoptions and state-initiated proceedings defend the same fundamental

right to parent their children. In re Adoption of A.W.S., 377 Mont. 234, 2014 MT 322, 339, P.3d

11

414, ¶ 15 (“the fundamental right to parent is equally imperiled whether the proceedings are

brought by the State or by a private party.”).

Indigent parents in adoption proceedings face substantially the same circumstances as

indigent parents in state-initiated termination proceedings. Even though the “concepts of

adoption and permanent custody are each contained within different statutes with different

purposes and each with different test involved before a court can grant them,” both proceedings

yield the same effect and threaten the same weighty consequences. Matter of Adoption of Y.E.F.,

5th Dist. No. 18 CAF 09 0070, 2019-Ohio-449, 130 N.E.3d 1044, ¶ 24, appeal allowed sub nom.

In re Adoption of Y. E. F., 155 Ohio St.3d 1467, 2019-Ohio-2100, 122 N.E.3d 1297, ¶ 24

(2019). The Supreme Court of Illinois has further acknowledged these similarities. In re L.T.M.,

214 Ill.2d at 60. The Supreme Court of Illinois commented:

Generally, a person who stands to lose a right under one statute is not similarly situated to persons who face the same loss under an entirely different statute with a different legislative purpose….Nevertheless, a parent who stands to lose his rights under the Adoption Act if he is found unfit is in a very similar situation to a parent who stands to lose the very same constitutional right, based on the very same finding, in proceedings under the Juvenile Court Act.

Id. at 75-76. Therefore, a parent facing termination of her parental rights in an adoption

proceeding is similarly situated with a parent in a state-initiated termination proceeding.

3. No compelling state interest justifies the differential treatment of private adoptions and state-initiated termination proceedings.

Under the strict-scrutiny standard, a state’s disparate treatment of like-situated

individuals is justified only where the distinction serves a compelling state interest. Cleburne,

473 U.S. at 440. Furthermore, the classification must be narrowly tailored to serve this interest.

Thompson at ¶ 13. While Capitania has a legitimate state interest in denying the appointment of

counsel in private adoption cases, this interest is not compelling and does not justify the unequal

12

treatment of indigent parents. Additionally, Capitania may address its pecuniary concerns

through less restrictive alternatives.

The only interest served by denying counsel in private adoptions is the preservation of

financial resources. While the state has a legitimate interest in controlling expenditures, this

pecuniary interest is not compelling. In re L.T.M., 214 Ill. 2d at 76. The Supreme Court of the

United States dismissed the state’s pecuniary interest as “hardly significant enough to overcome

private interests as important as [parental rights]….” Lassiter v. Dep't of Soc. Serv. of Durham

County, N. C., 452 U.S. 18, 28, (1981). The rights and relationships at stake in these proceedings

are so fundamental that the private interests far outweigh the state’s financial interests.

The distinction drawn by Capitania law is not narrowly tailored to serve the state’s pecuniary

interest because the state can pursue less restrictive alternatives. Courts have recognized that

states can take steps to control their expenses related to appointed counsel. In re L.T.M., at 76–77

(“The State may maintain reasonable control of expenditures without flatly denying counsel to

an entire class of persons whose parental rights are at stake.”); Matter of K.A.S., 499 N.W.2d at

565 (“[T]here are guidelines for the recoupment of the costs of legal services from indigent

parties who have received the benefit of court-appointed counsel, and procedures could be

developed to accomplish recoupment.”). Equal protection requires that disparate treatment be the

“least restrictive means” of advancing a legitimate state interest. See Reno v. Am. Civ. Liberties

Union, 521 U.S. 844. By denying appointed counsel to indigent parents facing the possible

termination of a most fundamental right, the state improperly prioritizes its pecuniary interest. To

more narrowly address the financial issues, Capitania should pursue alternative money-saving

policies that do not subjugate the fundamental rights of Capitania citizens.

13

C. In response to an unconstitutionally restrictive classification, the appropriate remedy requires an expansion of the right to all similarly situated persons.

To remedy the unequal treatment imposed by Capitania law, this Court should expand the

right to counsel to include indigent parents involved in private adoption proceedings. “Where a

statute is defective because of underinclusion there exist two remedial alternatives: a court may

either declare it a nullity…or it may extend the coverage of the statute to include those who are

aggrieved by exclusion.” Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J.,

concurring). In this case, the Court should adopt the latter remedy and extend the privilege by

reversing and remanding with instructions to appoint counsel.

Extending the coverage of the statute comports with legislative intent. By affording counsel

for indigent parents in state-initiated proceedings, the Capitania legislature acknowledged the

benefit served by appointing counsel to indigent parents. Eliminating the provision of counsel for

all indigent parents would directly counteract this legislative intent. See Matter of K.A.S., 499

N.W.2d at 566; see also Zockert v. Fanning, 800 P.2d 773, 779 (1990) (“lawmakers have

disclosed no intent to deny [the] privilege [of counsel] but, rather, an intent that parents enjoy the

privilege when faced with a termination....”). As such, the appropriate remedy demands an

expansion of the right to all similarly situated persons—in this case, all indigent parents facing

the termination of parental rights.

Furthermore, other state supreme courts, finding similar equal protection violations, have

implemented this inclusive remedy. After determining that the statutory provision of counsel in

only state-initiated proceedings violated the state constitution, the Supreme Court of Oregon

held: “The legislative grant of the…assistance by counsel in one mode of termination of parental

rights requires that the opportunity to exercise that privilege be extended to all similarly situated

parents directly threatened with permanent loss of parental rights.” Zockert, 800 P.2d at 778; see

14

also In re S.A.J.B., 679 N.W.2d 645, 651 (Iowa 2004) (“[O]n remand, [biological mother] should

be appointed counsel at public expense.”); see also Matter of K.A.S., 499 N.W.2d at 568. This

Court should follow the example set by other state supreme courts and reverse and remand with

instructions to appoint counsel.

II. The state must appoint counsel for Hooper because failing to do so violates her due process rights under the federal and state constitutions.

In addition to her equal protection rights, Hooper is also constitutionally protected by the due

process rights afforded her by the federal and state constitutions. The Due Process Clause

contained in the Fourteenth Amendment to the United States Constitution states: “No State shall

* * * deprive any person of life, liberty, or property, without due process of law * * *." U.S.

Const. amend. XIV, § 1. The Due Course of Law Clause in Article I, Section 2 of the Capitania

Constitution provides: “All courts shall be open, and every person, for an injury done him in his

land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice

administered without denial or delay.” Cap. Const. art. I, § 2. These two articles provide the

same due-process protections in the state of Capitania, and other states have agreed that the two

provisions provide the same protections. See Aalim at ¶ 4 ; State v. Hand, 149 Ohio St.3d 94,

2016-Ohio-5504, 73 N.E.3d 448, ¶ 11 (2016). Therefore, it is appropriate to analyze Hooper’s

due-process rights using cases that address the Due Process Clause of the Fourteenth

Amendment as well as cases from other states with similar provisions. Hand at ¶ 11.

A substantive due process analysis under the Fourteenth Amendment calls for strict scrutiny

when a state deprives an individual of a fundamental right. Meyer v. Nebraska, 262 U.S. 390,

400 (1923). The right of a parent to “make decisions concerning the care, custody, and control of

[her] children” is a fundamental right protected by the Fourteenth Amendment of the United

States Constitution and is therefore subject to strict scrutiny. Troxel v. Granville, 530 U.S. 57

15

(2000). Strict scrutiny requires that any state deprivation of a fundamental right be narrowly

tailored to promote a compelling state interest. Id. There is no compelling state interest served by

refusing to appoint counsel for indigent persons in cases which will terminate parental rights

Lassiter, 452 U.S. at 28. Therefore, the deprivation of Hooper’s fundamental right to parent her

child without the assistance of appointed counsel violates her substantive due process rights.

Furthermore, Hooper’s right to parent her child is also a liberty interest, and as such, is

subject to protection by procedural due process. See Mathews v. Eldridge, 424 U.S 319 (1976).

For indigent persons, such as Hooper, due process requires that the state appoint counsel to

represent the parent if she cannot afford to provide her own. See Id. at 332. The state has

deprived Hooper of her liberty interest in parenting her child through its participation in the

adoption proceedings initiated by her child’s stepmother. Therefore, the state must ensure that

Hooper is afforded all the protections of due process, including, as she has asserted her

indigency, the appointment of counsel. Id. In the alternative, the state must prove that its failure

to provide counsel promotes a compelling government interest that outweighs Hooper’s private

interests. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 5 (2005).

This Court must remand this case and require that Hooper be appointed counsel for three

reasons. First, the court’s participation in the adoption process constitutes the requisite state

action to bring a due process claim. Second, failing to provide Hooper with counsel is a violation

of her substantive due process rights. Third, procedural due process requires that Hooper be

provided with counsel.

A. The court’s participation in the adoption process implicates due-process rights under the Fourteenth Amendment and the state due-course-of-law provision.

State action is required to protect citizens’ due process rights. The Supreme Court has held

that “the Constitution's protections of individual liberty and equal protection apply in general

16

only to action by the government.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619

(1991). Furthermore, the Fourteenth Amendment implicates due process when a state acts to

deprive a citizen of her rights. Ex parte Commonwealth of Virginia, 100 U.S. 339, 347 (1879).

Therefore, Hooper must first show that the state acted to deprive her of her right to be a parent if

she seeks to claim that she has not been afforded due process of law.

She can easily prove the requisite state action, however, because one of the most common

ways a state acts is through its judiciary proceedings. Id. All adoptions, whether private or

public, require judicial action to make them official. State ex rel. Howard v. F’erreri, 70 Ohio

St.3d 587, 1994-Ohio-130, 639 N.E.2d 1189 (1994); M.L.B., 519 U.S. at 116. Although

Hooper’s parental rights were terminated through a private adoption rather than by state-initiated

proceedings, the state had a heavy hand in facilitating that adoption.

In any adoption, the state is the only entity that can extinguish parental rights, allowing the

adoption to take place. M.L.B., 519 U.S. at 116. Without the state’s participation, any adoption

of G. H. could not terminate Hooper’s parental rights. Id. Because the state plays such a crucial

role in the proceedings, a private adoption like this one should be treated as an action of the state

as would any state-initiated termination proceeding. Zockert, 800 P.2d at 800. Although the

petition to adopt G.H. was initiated by the child’s stepmother, the state finalized it by terminating

Hooper’s parental rights. Therefore, sufficient state action has occurred in the adoption of G.H.

to trigger the consideration of Hooper’s due process rights under the federal and state provisions.

17

B. The state has infringed on Hooper’s fundamental right to parent her child without a compelling state interest in doing so.

The substantive due-process function of the 14th Amendment is violated when a state unduly

deprives a person of one of her fundamental liberties, including the “liberty interest in the care,

custody, and management of the child” by the natural parents. Santosky, 455 U.S. at 753.

A right is considered fundamental when it is so closely intertwined with the traditions of the

nation that liberty cannot exist without protecting that right. Chavez v. Martinez, 538 U.S. 760,

775 (2003). The right of a parent “to make decisions concerning the care, custody, and control of

[her child]” is “perhaps the oldest of the fundamental liberty interests recognized by this

[Supreme] Court.” Troxel, 530 U.S. at 66. The right to parent one’s child is a constitutional right

that has been recognized since Meyer v. Nebraska when the Court held that parents had the

fundamental right to direct their children’s education. Meyer, 262 U.S. at 399-401. The Supreme

Court has continued to build on the nuances of this right and has held the fundamental rights of

parents to include the parent-child relationship itself, as well as the right of the parent to manage

the family unit. See Santosky, 455 U.S. at 753; Quilloin v. Walcott, 434 U.S. 246, 255 (1978). It

is without a doubt, therefore, that the rights of a parent are crucial to maintaining the nation’s

tradition of justice as it pertains to family matters.

If the federal or state government deprives an individual of any such right, the courts must

apply a standard of strict scrutiny to determine whether there is a legitimate state interest served

by the impinging practice and whether the practice is specifically tailored to advancing that state

interest. See Harrold at ¶ 39; Meyer, 262 U.S. at 400. The practice of terminating an indigent

person’s parental rights without the assistance of counsel is not narrowly tailored to serving any

compelling state interest.

18

As the dissenting opinion of the lower court contended, the only state interest served by

failing to provide counsel for indigent persons in these circumstances is a pecuniary one. The

Supreme Court has held this to be “hardly significant enough to overcome private interests” that

carry such weight as the parent-child relationship. Lassiter, 452 U.S. at 28. Therefore, the state’s

termination of Hooper’s parental rights without affording her the assistance of counsel does not

pass strict scrutiny and violates her substantive due process rights.

C. The state has deprived Hooper of a significant liberty interest without the required procedural due process considerations.

Not only does due process comprehensively protect fundamental liberties, it is also a flexible

concept that requires a nuanced, case-by-case analysis of the protections it provides. Morrissey v.

Brewer, 408 U.S. 471, 481 (1972). Procedural due process takes into account the individualistic

nature of each case where a liberty or property interest is at stake. These rights, guaranteed by

the Fourteenth Amendment, are violated when the state unduly deprives an individual of an

interest in life, liberty, or property. Zinermon v. Burch, 494 U.S. 113, 125 (1990). It is important

to note that the deprivation of such an interest itself is not unconstitutional but rather is only in

discord with the Fourteenth Amendment when the state deprives the citizen of the interest

without providing her with a meaningful opportunity to be heard. See Goldberg v. Kelly, 397

U.S. 254, 267 (1970).

The Supreme Court of the United States has consistently held that parents have a liberty

interest in parenting their children. See Troxel, 530 U.S. at 57. Therefore, when the state acts to

deprive Hooper of her right to parent her child, it must provide her with procedural due process,

including, as she is an indigent person, the appointment of counsel.

The prevailing presumption is that indigent persons are afforded the appointment of counsel

only in cases where they risk being deprived of their physical liberty. See Lassiter, 452 U.S. at

19

31-32. However, In Mathew vs. Eldridge, the Court delivered a three-pronged analysis to balance

the rights and interests at stake to rebut this presumption and potentially require the appointment

of counsel for indigent persons, even when their physical liberty is not at stake. See Eldridge,

424 U.S 319 at 332. Similarly, the Court also held in M.L.B. that the state of Mississippi must

afford indigent parents the same due process considerations as petty offenders. M.L.B., 519 U.S.

at 107.

Using the Eldridge analysis, the court must consider:

(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 the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id.

1. Parental rights are fundamental to the individual’s liberty and happiness.

Although Hooper’s physical liberty is not in jeopardy, her freedom to parent her child is

at stake. The U.S. Supreme Court has held that, where the stakes are lower than the total loss of

physical liberty, the agency responsible for the revocation of the liberty should make the decision

to appoint counsel for indigent persons on a case-by-case basis depending on whether the

proceeding would or would not be fundamentally fair. See Gagnon v. Scarpelli, 411 U.S. 778,

790 (1973) (holding that parole and probation proceedings require the appointment of counsel

for indigent persons). Therefore, the court, as the responsible entity, has the opportunity to use its

governing power to give credence to the happiness of the mother and child affected by this

adoption proceeding by appointing counsel for the mother in the name of fundamental fairness.

When a child is adopted, the relationship with her biological parent ceases to exist. Cap.

Rev. Code § 33-400.235. In this case, the state's aim is not merely to influence the parent-child

20

relationship but to extinguish it. Lassiter, 452 U.S. at 39. The court should consider the gravity

of this situation and appreciate that its decision is final and will have a lifelong impact on both

mother and child.

Counsel is always provided to indigent persons who face incarceration. See Gideon v.

Wainwright, 372 U.S. 335, 340 (1963). In some respects, the removal of parental rights affects

both the parent and child more negatively than would a prison sentence. In fact, one court in

Ohio has said that “A termination of parental rights is the family law equivalent of the death

penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 55 (6th

Dist.1991). This harsh result is evidenced by considering that incarceration may only separate

the two for a period of years marked by visitation, while termination of parental rights severs all

ties completely. It is only natural, then, to suggest that the same accommodation should be made

when the sentencing is more severe and more permanent, and that “the parties to such an action

must be afforded every procedural and substantive protection the law allows.” Id.

2. The court is less likely to make an erroneous decision regarding parental rights when counsel is present.

When it makes such important decisions as this one, the state has a vested interest in

making sure that proceedings are fair and balanced. A civil proceeding is fair and balanced if

each party is represented by counsel. Just as in a criminal proceeding, “a person who is too poor

to hire a lawyer, cannot be assured a fair trial unless counsel is provided for [her].” Gideon, 372

U.S. at 344. Therefore, the mother who risks losing her child in an adoption proceeding, whether

it be private or state-initiated, is only fairly represented if she retains counsel. If she cannot do so

herself, it is in the interest of fairness that the state appoint counsel for her.

However, the mother’s interest is not the only interest at risk of being underrepresented.

The state also must consider the interest of the child. In an adoption case, the court must consider

21

“(1) whether the petitioner is suitably qualified to care for and rear the child, and (2) whether the

best interests of the child will be promoted by the adoption.” In re Adoption of Ridenour, 61

Ohio St.3d 319, 320, 574 N.E.2d 1055, 1057 (1991). The child’s best interest would be better

served if each party to the adoption was adequately represented by counsel. G.H., now reaching

five-years-old, is at a critical point in her development and may be adversely affected by the loss

of interaction with her mother. Although there are significant factors that may show that the child

would fare better if adopted by her stepmother, the court would be in a better position to hear all

sides of the story if Hooper were represented by counsel, rather than appearing pro se. See

Lassiter, 452 U.S. at 28.

Furthermore, one of the cornerstones of American justice is the concept of a fair and

adversarial trial. Where a party does not retain counsel, she may lose the power to be a full

adversary to her opponent, thereby making the trial less fair. See Herring v. New York, 422 U.S.

853, 858 (1975). Where a trial is fair, with equal adversarial weight given to each party, it is

more legitimate, and therefore less likely to result in an erroneous decision. See Kimmelman v.

Morrison, 477 U.S. 365, 374 (1986). The court should be, therefore, interested in securing the

legitimacy of its rulings by assuring that every person that wishes to be represented by counsel

has the opportunity to retain it.

3. The government has little interest in failing to provide counsel.

The final point to consider in completing the Eldridge analysis is the government’s

interest, both financial and administrative, in not providing counsel to indigent persons in private

adoption cases. Eldridge, 424 U.S 319 at 332.

The only reason stated in the lower court’s opinion against providing counsel to such

persons is the financial burden placed on the state. However, the courts have long held that this is

22

not a sufficient reason to deny the provision of counsel when personal liberty concerns far

outweigh the state’s financial interest. See Matter of K.A.S., 499 N.W.2d at 563-67; Lassiter, 452

U.S. 18, 28.

Although the costs involved might dissuade the state from appointing counsel to indigent

persons, providing counsel might serve to lessen the cost of judicial proceedings overall. If

Hooper had been provided with counsel when she first requested it, the matter would have been

resolved quickly and without incurring the expense of a costly appeal. Even if she did appeal, “In

the tightly circumscribed category of parental status termination cases, appeals are few, and not

likely to impose an undue burden on the State.” M.L.B., 519 U.S. at 104

This case calls for the appointment of counsel in precisely the way the Lassiter court

foresaw that due process might require such appointment. Here, “the parent's interests [are] at

their strongest, the State's interests [are] at their weakest, and the risks of error [are] at their

peak.” Lassiter, 452 U.S. at 31. Therefore, the Eldridge factors “overcome the presumption

against the right to appointed counsel,” and “require the appointment of counsel” for Hooper. Id.

Finally, the court must consider that the character of the mother in question does not

determine whether she deserves adequate representation. As the Lassiter court said so well,

It may well be that if she were accorded competent legal representation, the ultimate result in this particular case would be the same. But the issue before the Court is not petitioner's character; it is whether she was given a meaningful opportunity to be heard when the State moved to terminate absolutely her parental rights.

Id, at 28. This court cannot conjecture whether Hooper’s case would amount to a different result

had she been provided counsel. It might well be that the adoption would proceed just as it did at

the trial court. See Id. at 33. However, it can be said with certainty that had the trial court

provided counsel, Ms. Hooper’s due-process rights would have been fully protected, and there

would be no constitutional question of fairness to consider.

23

CONCLUSION

For the reasons stated, this Court should reverse the decision of the Court of Appeals and

remand the case for further proceedings in which Ms. Hooper is appointed counsel by the state.

Team 6, Counsel of Record Attorneys for Petitioner

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APPENDIX

The text of the appendices is omitted because the attachment of said appendices is not required by the rules of the competition.