No. 19-0514

SUPREME COURT OF CAPITANIA

Spring Term 2020

IN RE G.H.

CAROLYN HOOPER,

Petitioner,

v.

ARLENE JOHNSON,

Respondent.

ON WRIT OF CERTIORARI TO THE STATE OF CAPITANIA COURT OF APPEALS

No. 19 CV 0514

BRIEF FOR PETITIONER Team No. 12 Counsel for Petitioner

ORAL ARGUMENT REQUESTED

i

QUESTIONS PRESENTED

I. Whether the Capitania Revised Code, Title 400-322, violates the Petitioner’s right to

counsel under the Equal Protection Clause where an indigent mother’s petition for

counsel was denied in a private adoption proceeding but would have been approved

in a state proceeding, despite both actions arising out of the same transaction.

II. Whether the Capitania Court of Appeals violated the liberty interest of the biological

mother where it disregarded her required consent and her right to counsel in spite of

regular visitations including those via proxy of the maternal grandparents while she

was incarcerated and her continuous maintenance of the child.

ii

TABLE OF CONTENTS

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

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iv

OPINIONS BELOW ........................................................................................................................1

STATEMENT OF JURISDICTION................................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS ............................................................1

STANDARDS OF REVIEW ...........................................................................................................1

STATEMENT OF THE CASE ........................................................................................................2

A. Statement of Facts ................................................................................................................2

B. Procedural History ...............................................................................................................3

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

ARGUMENT ...................................................................................................................................6

I. THE DECISION OF THE CAPITANIA COURT OF APPEALS SHOULD BE REVERSED BECAUSE IT VIOLATES PETITIONER’S EQUAL PROTECTION RIGHTS ...............................................................................................................................6

A. The Capitania Statute, Title 400-322, Violates The Equal Protection Clause Because It Is Underinclusive In Its Application ......................................................6

B. The Capitania Statute, Title 400-322, Does Not Meet Strict Scrutiny ..................10

C. As A Matter Of Policy, Society Has A Vested Interest In Reuniting Parents With Their Children And Maintaining Parental Bonds ..................................................12

II. THE DECISION OF THE CAPITANIA COURT OF APPEALS SHOULD BE REVERSED BECAUSE IT VIOLATES PETITIONER’S DUE PROCESS RIGHTS ....14

A. Title 400-227, Invalidated The Procedural Due Process Rights of the Petitioner............................................................................................................................…15

B. The Petitioner Has A Liberty Interest In Protecting Her Relationship With Her Child .......................................................................................................................18

iii

C. The Elimination of Arbitrary Laws And The Implementation Of Qualitative Justice Supports The Appointment Of Counsel For All Indigent Parents .............21

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

APPENDICES ............................................................................................................................ A-1

U.S. CONSTITUTION ................................................................................................... A-1

Amendment XIV ................................................................................................. A-1

CAPITANIA CONSTITUTION ..................................................................................... A-1

Cap. Const. Art. I, § 2 ......................................................................................... A-1

Cap. Const. Art. I, § 16 ....................................................................................... A-1

CAPITANIA FAMILY CODE CHAPTER 33 .............................................................. A-1

Title 400-226 Consent Required ......................................................................... A-1

Title 400-227 Consent Not Required .................................................................. A-2

Title 400-322 Right to Counsel ........................................................................... A-3

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases

Armstrong v. Manzo, 380 U.S. 545 (1965) ...........................................................................................................18

Aptheker v. Secretary of State, 378 U.S. 500 (1964) ...........................................................................................................11

Boddie v. Connecticut, 401 U.S. 371 (1971) .............................................................................................................6

Eisenstadt v. Baird, 405 U.S. 438 (1972) .............................................................................................................7

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) .............................................................................................................7

Goldberg v. Kelly, 397 U.S. 254 (1970) ...........................................................................................................17

In re Gault, 387 U.S. 1 (1967) ...............................................................................................................22

Lassister v. Dep’t of Social Services, 452 U.S. 18 (1981) .......................................................................................................11, 21

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) .............................................................................................................7

Mathews v. Eldridge, 424 U.S. 319 (1976) .....................................................................................................19, 20

M.L.B. v. S.L.J., 519 U.S. 102 (1996) .....................................................................................................6, 7, 8

Prince v. Massachusetts, 321 U.S. 158 (1944) ...........................................................................................................17

Reed v. Reed, 404 U.S. 71 (1971) ...............................................................................................................7

Roe v. Wade, 410 U.S. 113 (1973) ...........................................................................................................10

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) .................................................................................................................7

v

Santosky v. Kramer, 455 U.S. 745 (1982) ...............................................................................................10, 19, 20

Shelton v. Tucker, 364 U.S. 479 (1960) ...........................................................................................................11

Stanley v. Illinois, 405 U.S. 645 (1972) .....................................................................................................20, 21

Welsh v. United States, 398 U.S. 333 (1970) ...........................................................................................................11

Williams v. Taylor. 529 U.S. 362 (2000) .............................................................................................................1

Zablocki v. Redhail, 434 U.S. 374 (1984) ...........................................................................................................19

United States Courts of Appeals Cases

In re Adoption of Kisel, 1979 Ohio App. Lexis 9838 ...............................................................................................16

In re Adoption of Hupp, 9 Ohio App. 3d 128 (Ohio App. Ct. 1982) ........................................................................16

In re L.C.C., 2018 Ohio 4617 (OH. App. Ct. 2018) ...............................................................................10

United States State Court Cases

A.W.S. v. A. W., 2014 MT 322 (Mont. 2014) ............................................................................................ 8, 9

Department of Pub. Welfare v. J.K.B., 379 Mass. 1 (Mass. 1979) ..............................................................................................9, 18 In re Adoption/Guardianship of Rashawn H. and Tyrese H., 937 A. 2d 177 (M.D. 2007) ...............................................................................................17 In re Adoption/Guardianship of Ta’Niya C., 8 A.3d 745 (M.D. 2010) .....................................................................................................17 In re Adoption of K.A.S., 499 N.W.2d. 558 (ND 1993) ...............................................................................................9

In re Adoption of Meaghan, 461 Mass. 1006 (Mass. 2012) ..............................................................................................9

vi

In re K.L.J., 813 P.2d 276 (Ala. 1991) ...................................................................................................21

In the Matter of the Adoption of a Child by J.E.V. and D.G.V., 226 N.J. 90 (2016)…………………………………………………………………....….21

J.E.B. v K.C., (In re S.A.J.B.), 679 N.W.2d 645 (Iowa 2004) ..............................................................................................9

Jo Ellen J. v. John M. (In re L.T.M.), 214 Ill. 2d 60 (Ill. 2005) .......................................................................................................8

Reist v. Bay Circuit Judge, 396 Mich. 326 (Mich. 1976) ..............................................................................................18

Zockert v. Fanning, 310 Ore. 514 (Ore. 1990) .....................................................................................................8

Constitutional Provisions

U.S. Const. amend. XIV….…...................................................................................................... 20

U.S. Const. amend. IX …....................................................................................................... 18, 19

Cap. Const. art. I, § 2 …..........................................................................................................11, 18

Cap. Const. art. I, § 16 …..............................................................................................................11

State Statutes

Title 400 – 226……………………………………………………………………………….16, 17

Title 400 – 227 ...............................................................................................................................15

Title 400 – 322 .................................................................................................................................6

Secondary Authorities

Anne E. Jbara, The Price They Pay: Protecting the Mother-Child Relationship Through the Use of Prison Nurseries and Residential Parenting programs, 87 Ind. L.J. 1825 (2012) ....................13

D. Howe, M. Brandon, D. Hinings, G. Schofield, Attachment Theory, Child Maltreatment and Family Support (1999) ...................................................................................................................13

Determining the Best Interests of the Child, https://www.childwelfare.gov/pubPDFs/best_interest.pdf ............................................................13

vii

Emma S. Ketteringham, Live in a Poor Neighborhood? Better Be a Perfect Parent. The New York Times (Aug. 22, 2017) ..........................................................................................................22

Effects of Maltreatment and Ways to Promote Children's Resiliency, Childhood Education (1999), 75:4, 204-209 ....................................................................................................................12

Jean W. Sutton, Parent’s Right to Counsel in Dependency and Neglect Proceedings, Indiana Law Journal (1973), 49:1, 175 .......................................................................................................22

John Bowlby, Attachment and Loss: Retrospect and Prospect, American Journal of Orthopsychiatry (1982), 52:4, 664-678 .........................................................................................13

Parent-Child Interactions with Correctional Systems, 29 Child. L. Prac. 74 (2010) ....................14

M. Noel, C. Najowski, When Parents Are Incarcerated, Their Children Are Punished, Too, American Psychological Association (Sep. 1, 2009) .....................................................................12

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OPINIONS BELOW

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

Court of Appeals of Capitania (“Court of Appeals”) appears in the Record at R. 1.

STATEMENT OF JURISDICTION

The formal requirement of a statement of jurisdiction is waived pursuant to Article 7(3)

of the Rules of the 2020 National Moot Court Competition in Child Welfare and Adoption Law.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The adjudication of this case involves interpretation of Cap. Const. Art. I, §§ 2 and 16,

and Section 1 of the Fourteenth Amendment to the U.S. Constitution. Adjudication also involves

Cap. Rev. Code §§ 400-226, 400-227, and 400-322. The relevant texts of the constitutional

provisions and statutes are attached in the Appendices.

STANDARDS OF REVIEW

The Court granted certiorari on two issues: (1) “Must this Court reverse the trial court’s

decision to grant Stepmother’s petition to adopt G.H. because Biological mother was deprived of

her right to the assistance of counsel, as guaranteed under constitutional equal protection

mandates?” and (2) “Must this Court reverse the trial court’s decision to grant the petition to

adopt G.H. because Biological Mother was deprived of her right to the assistance of counsel, as

guaranteed under constitutional due process protections?” (Order Granting Certiorari). The

standard of review for both issues is de novo as the determination of whether refusing to

recognize the right to counsel in a private adoption context violates equal protection and due

process rights guaranteed under the Constitution is a question of law. Questions of law are

reviewed de novo. Williams v. Taylor, 529 U.S. 362, 384 (2000).

2

STATEMENT OF THE CASE

A. Statement of Facts

This case concerns the adoption of the minor child, G.H. (“the child”), and the

termination of parental rights of the child’s biological mother, Petitioner Carolyn Hooper

(“Carolyn”). (R. 1.) Carolyn Hooper and Morgan Johnson (“Father”) are the biological parents of

G.H., but the couple never married. (R. 1.) Neither parties filed a Juvenile Court custody action,

but Carolyn primarily cared for G.H. after birth. (R. 1.) The couple had a mutual agreement for

Father’s visitation of the child and support was determined through the Harrison County Child

Support Enforcement Agency. (R. 1-2.) Carolyn supported herself and the child by working part

time at a local department store making minimum wage and retained reliable childcare from the

maternal grandparents. (R. 2.)

The maternal grandparents and the Father began to express concern regarding Carolyn’s

behavior and ability to care for the child after she started dating and living with her boyfriend,

John Mack. (R. 2.) Father tried to remove G.H. from Carolyn’s home, but despite his efforts,

Children’s Services never removed the child or even opened a case. (R. 2.) On April 2, 2017, the

police responded to a neighbor’s call regarding a domestic concern in Carolyn’s home. (R. 2.)

The police found drug paraphernalia and large sums of money in the house. (R. 2.) Both Carolyn

and her boyfriend were arrested and charged with drug trafficking and manufacture of drugs. (R.

2.) Consequently, the police removed G.H. from the house and placed the child with the maternal

grandparents. (R. 2.) Shortly after, Father filed for custody of G.H. in the Harrison County

Juvenile Court. (R. 2-3.)

On July 7, 2017, due to her cooperation with prosecutors and having no history of prior

convictions, Carolyn was sentenced to 18 months in prison. (R. 3.) While incarcerated, Carolyn

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was served agency documents but ultimately was unable to be part of the proceeding. (R. 3.) On

September 30, 2017, the trial court heard Father’s case regarding the custodial rights of G.H. (R.

3.) The Juvenile Court gave him the custodial right of G.H. and awarded the maternal

grandparents visitation. (R. 3.) On December 7, 2017, while Carolyn was in prison, Father

married Arlene Johnson (“Arlene” or “Stepmother”). (R. 3.) But despite her incarceration,

Carolyn was able to maintain a close relationship with G.H. (R. 3.) The maternal grandparents

routinely took G.H. to visit his mom and took pictures during their visitation. (R. 3.)

Shortly after her release from the prison on January 7, 2019, Carolyn began to live in

low-income housing; she cooperated with outpatient treatment and recovery; and she met with

her parole officer on a regular basis. (R. 3.) She did not file for visitation because she was able to

have regular contact with G.H. during the maternal grandparents’ visitation. (R. 4.) While no

change in support was reported by either parent to the Harrison County Child Support

Enforcement Agency, Carolyn secured stable employment so that she could provide food,

clothes, and gifts for G.H. (R. 4.) Shortly after Carolyn’s release from prison, Arlene Johnson

filed a petition for adoption of G.H. (R. 4.)

B. Procedural History

On March 4, 2019, Arlene Johnson filed a petition for adoption in the Harrison County

Probate Court. (R. 4.) In her petition, Arlene alleged that Carolyn’s consent for the adoption was

not required because she did not provide support for the child in the year prior to the filing. (R.

4.) On March 6, 2019, Carolyn reached out to her local legal aid office. (R. 4.) They told her to

send a written objection and to request appointment of counsel. (R. 4.) On March 8, 2019,

Carolyn submitted her pro se document proving her continued contact and support of G.H., and

she also requested counsel. (R. 4-5.)

4

At the April 4, 2019 hearing, Carolyn renewed her request for appointed counsel. (R. 5.)

The Probate Court denied her request and indicated that the right to counsel applies only to state-

initiated adoption proceedings. (R. 5.) On April 22, 2019, the final hearing was held, and the

Court granted Respondent’s petition without Carolyn’s consent because she failed to pay

informal child support to the Father, and they believed that it would be in the child’s best interest

and based on the past event of Carolyn and significant connection to the Stepmother. (R. 5.) On

April 26, 2019, the final order of adoption was filed. (R. 5.)

On May 3, 2019, Carolyn appealed the decisions of the trial court, contending that it

violated the Equal Protection and Due Process Clauses guaranteed under the U.S. Constitution

and that the trial court erred in issuing the Final Decree of Adoption of G.H. (R. 1.) The Court of

Appeals of Capitania found no error in relation to the ruling and affirmed the decision of the

Harrison County Probate Court. (R. 1.) The Petitioner, Carolyn Hooper, now asks this Court to

reverse the decision of the Court of Appeals and remand the case for further proceedings.

SUMMARY OF THE ARGUMENT

Petitioner (“Carolyn”) respectfully asks this Court to reverse the decision of the Capitania

Court of Appeals. Carolyn brings her first claim under the Equal Protection Clause of the

Fourteenth Amendment. First, the underinclusive language of Title 400-322 infringes on

Carolyn’s right to counsel as an indigent parent in a private adoption proceeding. Second, the

statute fails to meet the standard of strict scrutiny. Finally, as a matter of policy, society has a

vested interest in maintaining the parental relationship.

Carolyn then brings her second claim under the Due Process Clause of the Fourteenth

Amendment. First, Carolyn’s procedural due process rights were violated when the adoption

petition was brought under the wrong statute. Second, the parent and child relationship is

5

essential, and counsel should be afforded to protect this interest. As a matter of policy,

recognizing the importance of protecting parental rights as well as eliminating arbitrary

distinctions in the law will help to preserve the fundamental rights of indigent parents. For all

these reasons, Petitioner asks this Court to reverse the decision of the Capitania Court of

Appeals.

6

ARGUMENT

I. THE DECISION OF THE CAPITANIA COURT OF APPEALS SHOULD BE REVERSED BECAUSE IT VIOLATES PETITIONER’S EQUAL PROTECTION RIGHTS

This Court should reverse the ruling of the Capitania Court of Appeals because an

indigent biological parent’s Equal Protection rights were violated when she was denied a right to

counsel in a private adoption proceeding. This violation occurred when Caroyln was denied

representation only because she was party to a private adoption proceeding rather than a state-

initiated proceeding. This deprivation greatly weakened her ability to craft a legal defense that

would help her to maintain a relationship with her child – a relationship that once severed, by

law can never be restored.

First, there is no difference between an indigent parent involved in a state initiated

proceeding and an indigent parent involved in a private adoption proceeding. Both are at risk of

losing their parental rights and should therefore have an equal opportunity to a right to counsel.

Second, the Title 400-322 does not pass strict scrutiny. The child-parent relationship is a

widely recognized fundamental right, and it should not be terminated without adequate

representation.

And finally, as a matter of policy, there is a societal benefit to maintaining and fostering

strong familial relationships. For this policy reason as well, the Court should reverse the decision

of the Capitania Court of Appeals.

A. The Capitania Statute, Title 400-322, violates the Equal Protection Clause Because It Is Underinclusive In Its Application “Choices about marriage, family life, and the upbringing of children are among

associational rights this Court has ranked as "of basic importance in our society," Boddie v.

Connecticut, 401 U.S. 371, 376 (1971), “rights sheltered by the Fourteenth Amendment against

7

the State's unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 117

(1996). The permanent severing of the “parent-child bond…demands the close consideration the

Court has long required when a family association so undeniably important is at stake.” Id.

However, the rights of an indigent parent in a private adoption proceeding are ignored by

Capitania Statute, Title 400 – 322. The statute states that only, “[i]n proceedings arising out of

State action alleging Abuse, Neglect or Dependency,…[i]f, as an indigent person, a party is

unable to employ counsel, the party is entitled to have counsel provided for the person.” (CS 400

§ 322). Parents, like Carolyn Hooper who are indigent but are involved in a private proceeding,

are not afforded representation. This is an equal protection rights violation. The equal protection

clause mandates that “‘all persons similarly circumstanced shall be treated alike.’” San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 89 (1973) (citing F.S. Royster Guano Co. v. Virginia,

253 U.S. 412, 415 (1920). While it is true that “the Fourteenth Amendment does not deny to the

State the power to treat different classes of persons in different ways[,]” Eisenstadt v. Baird, 405

U.S. 438, 447 (1972) (citing Reed v. Reed, 404 U.S. 71, 75-76 (1971)), it does however, “deny to

States the power to legislate that different treatment be accorded to persons placed by a statute

into different classes on the basis of criteria wholly unrelated to the objective of that statute.”

Eisenstadt, 405 U.S. at 447. “A classification ‘must be reasonable, not arbitrary, and must rest

upon some ground of difference having a fair and substantial relation to the object of the

legislation.’” Id. (citing Royster Guano Co., 253 U.S. at 415). Here, the distinction between state

action and private action is an arbitrary one. The Fourteenth Amendment “directed at the States,

… can only be violated by conduct that may be fairly characterized as ‘state action.’” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 923. And as “[a]doption exists only as a creature of statute[,]”

it is born out of state action. (R. 22). This Court acknowledged that in cases where an

8

adoption is “initiated by private parties as a prelude to an adoption petition, rather than by a state

agency, the challenged state action remains essentially the same: [the petitioner] resists the

imposition of an official decree extinguishing, as no power other than the State can, her parent-

child relationships." M.L.B., 519 U.S. at 116.

This rationale has been adopted by the lower courts. “Every state high court that has

examined the issue has held that it violates the state or federal equal protection clause to deny

appointed counsel to parents in private termination actions, when the state otherwise provides

counsel to parents defending themselves in termination proceedings that are initiated by the

state.” (R. 23, 24). In In re Adoption of L.T.M., a father was denied the right to counsel under the

Adoption Act even though he was “situated similarly to a parent who would be entitled to

appointed counsel under the Juvenile Court Act.” Jo Ellen J. v. John M. (In re L.T.M.), 214 Ill.

2d 60, 74 (Ill. 2005). The court there determined that the “enactment of a statuary scheme that

provides appointed counsel for indigent parents facing termination of parental rights under the

Juvenile Court Act, but not under the Adoption Act, violates the equal protection clause of the

fourteenth amendment to the United States Constitution.” Id. at 78. Similarly, in Zockert v.

Fanning, a father continuously petitioned for appointed counsel. Zockert v. Fanning, 310 Ore.

514, 516 (Ore. 1990). He was denied in trial court, but the appellate court reversed. Id. It

reasoned that “[t]he state is involved similarly in both [state and private] proceedings. A state

agency…plays a significant role in adoptions under ORS 109.310(4) and 109.316, and also

serves the juvenile court…. No distinction may be founded upon the fact that a private person

initiates an adoption.” Zockert, 310 Ore. at 522. The court in A.W. S. v. A. W. also held that “the

fundamental right to parent is equally imperiled whether the proceedings are brought by the State

or by a private party.Because, in either case, a parent stands to lose the same fundamental

9

constitutional right on a judicial determination of unfitness, we conclude that Mother is, for equal

protection purposes, similarly situated to a parent in a state termination proceeding.” A.W.S. v. A.

W., 2014 MT 322 ¶ 15 (Mont. 2014). Another court in In re Adoption of Meaghan, 461 Mass.

1006 1008 (Mass. 2012) recognized that

[a]n indigent parent facing the possible loss of a child cannot be said to have a meaningful right to be heard in a contested proceeding without the assistance of counsel…. Provision of appointed counsel not only safeguards the rights of the parents, but it assists the court in reaching its decision with the 'utmost care' and 'an extra measure of evidentiary protection,' required by law.

In re Adoption of Meaghan, 461 Mass. 1006, 1008 (MA S. Ct. 2012) (citing Department of Pub.

Welfare v. J.K.B., 379 Mass 1, 3-4. (Mass. 1979).

The Court ultimately held that when there “is a private party, the same fundamental,

constitutionally protected interests are at stake, and the cost of erroneously terminating the

parent's rights remains too high to require an indigent parent to risk it without counsel.” In re

Adoption of Meaghan, 461 Mass. at 1008. The court in In re S.A.J.B. held that “the Iowa Equal

Protection Clause guarantees an indigent parent the right to counsel in an involuntary termination

of parental rights proceeding.” J.E.B. v K.C., (In re S.A.J.B.) 679 N.W.2d 645, 651 (Iowa 2004).

And the court in In re Adoption of K.A.S. concluded that “excluding indigent parents in an

adoption proceeding from the class of indigent parents entitled to counsel creates an

impermissible, underinclusive classification, because the classification does not include all who

are similarly situated.” In re Adoption of K.A.S., 499 N.W.2d. 558, 567 (N.D. 1993). Carolyn,

like the indigent parents above, was arbitrarily deprived of her right to counsel due to the narrow

language of the statute.

While many lower courts recognize the basic similarities between state and private

actions, not all have been as quick to adopt this approach. The Ohio Court of Appeals in In re

10

L.C.C. denied a mother the right to counsel. In re L.C.C., 2018 Ohio 4617, ¶ 75 (Ohio Ct. App.

2018). The court held that she “waived the equal protection argument she now raises in her first

assignment of error by failing to raise it in the trial court.” Id. at ¶ 17. Though the mother there

“informed the trial court of her indigence and her prior unsuccessful efforts to retain legal

counsel to represent her in this matter, the record does not show that appellant ever requested the

trial court to appoint counsel, by motion or otherwise.”Id. at ¶ 22. Here, the matter is quite

different. Carolyn preserved her right by submitting a written petition for a right to counsel

almost a month before her hearing date. (R. 5). She petitioned the court again on the date of the

hearing. Id. Carolyn was vigilant in her efforts to secure counsel, but due to her lack of funds and

the limiting language of Title 400-322, she was unable to do so. Title 400-322 creates an obstacle

that hinders equal opportunity, and for all the above reasons, we ask this court to reverse the

decision of the Capitania Court of Appeals.

B. The Capitania Statute, Title 400-322, Does Not Meet Strict Scrutiny

“Few consequences of judicial action are so grave as the severance of natural family ties.

Santosky v. Kramer, 455 U.S. at 769. This relationship is so important that this Court is

“unanimously of the view that ‘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. at 774 (Rehnquist, J., dissenting). And

because a fundamental right exists, this matter is subject to strict scrutiny.

“Where certain ‘fundamental rights’ are involved, the Court has held that regulations

limiting these rights may be justified only by a ‘compelling state interest’…and that legislative

enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v.

Wade, 410 U.S. 113, 156 (1973). Furthermore, respondent concedes that “the strict scrutiny

standard applies.” (R. 9).

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First, the statute must meet a compelling state interest. The only conceivable interest that

the state would have in appointing counsel in solely state-initiated proceedings would be

monetary. However, the Court deems that argument to be insufficient because “[t]hough the

State’s pecuniary interest is legitimate, it is hardly significant enough to overcome private

interests as important as those here.” Lassiter, 452 U.S. at 28. The termination of parental rights,

“[u]nlike other custody proceedings, … leaves the parent with no right to visit or communicate

with the child, to participate in, or even to know about, any important decision affecting the

child's religious, educational, emotional, or physical development.” Lassister v. Dep’t of Social

Services, 452 U.S. 18, 39 (1981) (Blackmun, H., dissent). Carolyn only wants to be afforded the

opportunity to fully defend her parental rights.

Secondly, the statue must be implemented using the least restrictive means possible.

Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964) (citing Shelton v. Tucker, 364 U.S. 479,

488 (1960)).

Affording the right to counsel to some indigent parents but not all based on who brings an

action frustrates the purpose of the statute. It purposefully excludes an entire segment of indigent

citizens and directly deprives them of “equal protection and benefit.” Captitania Constitution,

Article 1 § 2. The statute’s underinclusiveness renders it “not narrowly tailored.” And where a

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

either declare it a nullity and order that its benefits not extend to the class that the legislature

intended to benefit,” or “it may extend the coverage of the statute to include those who are

12

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

concurring). Carolyn seeks the latter remedy. Broadening the statute to include all indigent

parents regardless of whether coming under a private or state proceeding would relieve the

burden on Carolyn’s fundamental right thus causing the state to use the least restrictive means

possible. And it also provides her with a constitutionally guaranteed remedy because “every

person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due

course of law.” Capitania Constitution, Article 1 § 16.

C. As A Matter of Policy, Society Has A Vested Interest In Reuniting Parents With Their Children And Maintaining Parental Bonds

The high rate of female prisoners has devastating effects on society, as many of them are

mothers and caregivers. Many of these women are facing the termination of their parental rights

as a result of incarceration, and if terminated, they are no longer the child’s legal parents.

Although Carolyn is no longer incarcerated, she was a part of the prison system, and some of the

negative stereotypes of incarcerated mothers are still plague her. Like these women who are

behind bars, Carolyn is facing the same devastating situation where she will lose the right to visit

G.H. or the right to decide how the child is raised. Public policy demands that adoption without

consent is unconstitutional and that unwanted separation has life-long detrimental effects on both

mother and child.

Statistics show that approximately 2.7 million children have at least one parent behind

bars, and at least 5 million have experienced parental incarceration at some point in their lives.

M. Noel, C. Najowski, When Parents Are Incarcerated, Their Children Are Punished, Too,

American Psychological Association (Sep. 1, 2009). Psychologists are concerned with the

psychological strains that will affect children’s well-being since parental incarceration often

leads to social and economic inequality for children. Id. Children form attachments with their

13

biological parents. “Theoretically, the separation of children from their parents is a risk factor

associated with poor mental health of children.” Barbara Lowenthal, Effects of Maltreatment and

Ways to Promote Children's Resiliency, Childhood Education (1999), 75:4, 204-209. Children

who “experience the loss of an attachment figure will exhibit distress even if the attachment

figure is replaced with a capable caretaker.” John Bowlby, Attachment and Loss: Retrospect and

Prospect, American Journal of Orthopsychiatry (1982), 52:4, 664-678. Separation will be

“distressing and anxiety-provoking” and the distress “can manifest in problematic behaviors,

such as aggression, delinquency, and depression.” D. Howe, M. Brandon, D. Hinings, G.

Schofield, Attachment Theory, Child Maltreatment and Family Support (1999). Thus, the

decision of a termination of parental rights must weigh in the best interests of the child and

consider the parental bonds between biological mother and child.

Approximately 22 States and the District of Columbia have listed specific factors in their

court statutes to consider when making determinations regarding the best interests of the child.

Children’s Bureau, Determining the Best Interests of the Child,

https://www.childwelfare.gov/pubPDFs/best_interest.pdf. One of the most commonly required

factors is the emotional ties and relationships between the child and his or her biological parents.

Id. In making the best interest determination, States focused on the importance of family

integrity and preference for avoiding removal of the child from his or her home. Id. For example,

Florida also considers the love, affections, and other emotional ties between the child and his or

her parents as important factors in determining the manifest interests of the child. Id. States like

California, Illinois, New York and Washington have passed legislation designed to protect

parental rights for incarcerated parents; to provide child support; and to strengthen family

reunification efforts. Id.

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Recognizing an incarcerated mother’s right to parent is also beneficial to the mothers.

Studies show that incarcerated women who can communicate with their children are often

mentally healthier than those who are unable to maintain their parental relationships. Anne E.

Jbara, The Price They Pay: Protecting the Mother-Child Relationship Through the Use of Prison

Nurseries and Residential Parenting programs, 87 Ind. L.J. 1825 (2012). While Carolyn was

incarcerated, G.H. was able to visit Carolyn and maintained a good relationship with his mother

via proxy of the maternal grandparents. Contact between mothers and their children can also

reduce recidivism by making it easier for mothers to reenter society upon release. Parent-Child

Interactions with Correctional Systems, 29 Child. L. Prac. 74 (2010). A close relationship will

help the mother to focus on rebuilding herself after her release from prison and improve her

ability to meet the requirements of child support by seeking employment opportunities. Not all

incarcerated women are unfit parents, nor do states have sufficient justification for the denial of

parental rights to incarcerated women. The allowance of children to remain with their biological

mother is one step toward helping mothers like Carolyn to reunite with their children while

improving themselves and becoming better citizens. The state plays a key role in adoption cases,

and as a matter of policy, this Court should not deny appointed counsel to Carolyn based on the

Equal Protection Clause.

II. THE DECISION OF THE CAPITANIA COURT OF APPEALS SHOULD BE REVERSED BECAUSE IT VIOLATES PETITIONER’S DUE PROCESS RIGHTS

This Court should reverse the ruling of the Capitania Court of Appeals because the court

erred when they found the adoption of G.H to be valid when the Biological Mother did not have

adequate representation afforded to her under the Due Process Clause of the United States

Constitution. Carolyn’s inability to be represented by counsel contributed to the permanent

termination of her relationship with G.H. The violation of petitioner’s due process rights can be

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categorized into two sections: Procedural Due Process (which involves notice and hearing) and

Substantive Due Process.

First, the Capitania Court of Appeals proceeded under the wrong theory of the Capitania

Family code. This misstep invalidated the notice and hearing requirement of procedural due

process. Second, the Capitania Court of Appeals violated the Carolyn’s liberty interest when they

denied her the right to counsel and subsequently terminated her parental rights. Finally, as a

matter of policy, changing the way that the court engages with indigent parents in termination

proceedings can ultimately facilitate a less traumatic process for all involved. For this policy

reason and more the Court should reverse the decision of the Court of Appeals.

A. Proceeding Under The Capitania Statute, Title 400-227 Invalidated The Procedural Due Process Right Of The Petitioner.

The relevant portion of Title 400-227 (“Consent Not Required Statute”) of the Capitania

Family Code States that

“A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.”

Capitania Revised Code, Family Code Title 400-227 (A)

By proceeding under the Consent Not Required Statute, the court put Carolyn on uneven

footing for the subsequent hearings. The Respondent will allege that proceeding under the

Consent Not Required Statute is valid as Carolyn did not provide maintenance and support for

G.H. the year prior to the adoption petition being filed on March 4th, 2019. The Respondent will

also allege that Carolyn had not maintained contact with G.H. in the year preceding the adoption

petition being filed. Id. Respondent’s assertion is incorrect for various reasons; the first reason

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being that there was justifiable cause for non-payment of support and the minimal visitation. The

Ohio Court of Appeals has said that “a non-custodial parent “willfully failed” to provide

maintenance and support for a child only if that parent voluntarily and intentionally failed to do

so.” In re Adoption of Hupp, 9 Ohio App. 128, 458 N.E.2d 878 (1982) (citing In re Adoption of

Kisel, Ohio App. Lexis 9838 (1979) In In re Adoption of Kisel, the Ohio probate court granted an

aunt’s petition to adopt her sister’s two children; she alleged that the mother did not provide

support neither did she communicate with her children. The aunt alleged that she did not require

the mother’s consent as the mother had willfully failed to provide support. Id. She also failed to

provide justifiable cause for lack of support. Id. Kisel is distinguishable from the case at bar;

Carolyn did not willfully deny support of G.H. Carolyn had justifiable cause as she was

incarcerated from July 7th, 2017 and released on January 7th, 2019. (R. 3)

Regarding the Respondent’s assertion that Carolyn did not maintain contact with G.H. is

also incorrect. During the time of Carolyn’s incarceration, she was able to visit G.H. nine times

by way of proxy through G.H.’s maternal grandparents. The Ohio Court of Appeals has held that

“[p]hysical visitation is not necessary to preserve a parent’s interest and a parent’s rights to retain

parental status. The legislature did not describe that abandonment of parental status as a failure

‘to communicate’ meaningfully, significantly, or regularly.” In re Adoption of Hupp, 9 Ohio

App. 128, 458 N.E.2d 878 (1982). Carolyn had justifiable cause for not providing support and

maintaining contact with G.H. at the time of her incarceration, and the respondent should have

used the Capitania Family Code Title 400-226 (Consent Required Statute). The relevant part of

Title 400-226 states “Unless consent is not required under section 400-227, a petition to adopt a

minor may be granted only if written consent to the adoption has been executed by all the

following: (A) The mother of the minor;” Title 400-226 required Carolyn’s consent to the

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adoption of G.H. and the termination of her parental rights. By proceeding under the Consent

Not Required Statute, Respondent would have the court subscribe to the idea that termination of

parental rights is a quick and painless process for those involved and that the severing of the

parental relationship would not adversely affect G.H. This idea is in direct contrast with the

principle “… that the custody, care, and nurture of the child reside first in the parents, whose

primary function and freedom include preparation for obligations the state can neither supply nor

hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Recent court cases have “changed

the landscape by requiring a finding of parental unfitness or exceptional circumstances before a

court could order termination of parental rights, regardless of whether that course was in the best

interest of the child.” In re Adoption/Guardianship of Ta’Niya C., 8 A.3d 745 (2010) (citing In re

Adoption/Guardianship of Rashawn H. and Tyrese H., 937 A. 2d 177 (2007)). The termination

of parental rights is a permanent outcome and must be treated with the utmost care and respect.

In re Adoption/ Guardianship of Ta’Niya C.is a case about a seven-year-old girl who was

removed from the home with her biological mother following allegations of abuse and neglect.

Once the mother proved she was on the path to a more stable lifestyle the department of child

services moved to reunite her with her child. The court in that case held that “even though the

court found that the mother was, at present, incapable of taking care of her child and that

removing the child from her … home would be detrimental to the child’s best interest, the court

decided not to terminate parental rights because it could not find the mother unfit or that

exceptional circumstances existed that justified severance of the parental tie.” Id. at 181. While

the facts of In re Adoption/Guardian of Ta’Niya are different than the case at bar the rationale,

should be followed by this court.

B. The Petitioner Has A Liberty Interest In Protecting Her Relationship With Her Child

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“Before a State deprives a legitimate parent of all that parenthood implies, the

requirements of due process must be met.” Department of Pub. Welfare v. J.K.B., 379 Mass. 1 at

4 (quoting Armstrong v Manzo, 380 U.S. 545 at 550.) “What procedures due process may require

under any given set of circumstances must begin with a determination of the precise nature of the

government function involved as well as the private interest that has been affected by the

governmental action.” Goldberg v. Kelly, 397 U.S. 254, 263 (1970). In the case at bar, Carolyn’s

right to maintain her relationship with G.H. is at stake. Given the sensitive nature of the

fundamental right in jeopardy, the procedures used must retain a sense of fairness. The fairness

in the proceeding should extend to both enumerated rights as well unenumerated rights. In

Carolyn’s case, in order to have a fair proceeding, she would also need to be afforded the

assistance of counsel that she was denied in the prior process. “The right to assigned counsel in

parental rights termination proceedings is process due the indigent parent, … indigent parents are

entitled to meaningful and adequate access to the appellate process and this right can only be

achieved through representation by counsel.…” Reist v. Bay Circuit Judge, 396 Mich. 326, 349;

see also In Interest of Brehm, 594 P.2d 269 at 271.

There is a long history of protected rights in the United States Constitution some of these

rights include: the right to due process, freedom of speech, freedom of religion, the right to

interstate and intrastate travel, the right to equality, the right to bear arms, the right to assemble

and the right to marry. The United States Constitution has also recognized the right to privacy

and the implied rights that come along with the ninth amendment. The ninth amendment

encompasses rights not listed explicitly in the Constitution; however, these rights should be

afforded the same protections. The ninth amendment states “the enumeration in the Constitution,

of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S.

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Const. amend. IX. The United States has long since recognized that fundamental rights should

be protected. Some examples of fundamental rights not specifically included in the Constitution

are marriage, privacy, contraception, interstate travel, procreation, voting and custody of one’s

child(ren). “Choices concerning contraception, family relationships, procreation, and

childrearing …. are among the most intimate that an individual can make.” Zablocki v. Redhail,

434 U.S. 374 (1984). “It is not surprising that the decision to marry has been placed on the same

level of importance as decisions relating to procreation, childbirth, childrearing, and family

relationships.” Id.

The Ohio Court of Appeals has held that “The right of a natural parent to the care and

custody of his children is one of the most precious and fundamental in law. Adoption terminates

those fundamental rights” In re Adoption of Lichtenberg, 2003 Ohio App. LEXIS 968 The Ohio

courts have also maintained that “natural parents have a fundamental interest in the care, custody

and management of their children. This interest is protected under the guarantee of the due

process of law set forth in the Fourteenth Amendment to the United States Constitution, and …

proceedings to terminate parental rights, it must provide the parent with fundamentally fair

procedures.” Santosky v. Kramer 445 U.S. 745; see also In re Schoeppner’s Adoption, 345

N.E.2d 608. It can be said that “the rights to conceive and to raise one’s children have been

deemed “essential”. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Carolyn’s case is similar to

the proceeding in Mathews v. Eldridge, 424 U.S. 319 (1975)., in that case while the termination

of rights was related to a man’s right to continue receiving disability payments, the rationale still

stands. “The fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319 at 330. In

order to determine if Carolyn’s due process rights are in danger of being violated we must

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consider three factors: “First, the private interest that will be affected by the official action;

second, 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 finally, the

government’s interest, including the function involved.” Mathews v. Eldridge, 425 U.S. 319 at

335.

The Capitania Court of Appeals violated the Carolyn’s liberty interest when they denied

her the right to counsel and proceeded to terminate her parental rights. This Court has long held

that “[t]he fundamental liberty interest of natural parents in the care, custody, and management

of their child does not evaporate simply because they have not been model parents or have lost

temporary custody of their child to the State. Even when the blood relationships are strained,

parents retain a vital interest in preventing the irretrievable destruction of their family life.”

Santosky, 455 U.S. 745 at 754. The destruction of the familial life is the situation that Carolyn

faces now. The Fourteenth Amendment of the Constitution states that “no State shall deprive any

person of life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction to the equal protection of the laws.” U.S. Const. amend. XIV. Carolyn’s denial of

council puts her at a disadvantage and weakens her case. This court has held that “persons faced

with forced dissolution of their parental rights have a more critical need for procedural

protections than do those resisting state intervention into ongoing family affairs. When the State

moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair

procedures.” Santosky, 455 U.S. 745 at 754. For Carolyn to have a fundamentally fair process,

and for her to adequately represent her side, she needs to be afforded representation.

Carolyn has an urgent interest in protecting her relationship with G.H. from being

terminated. “Since the State has an urgent interest in the welfare of the child, it shares the

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parent’s interest in an accurate and just decision. For this reason, the State may share the indigent

parent’s interest in the availability of appointed counsel.” Lassiter, 452 U.S. at 19. Carolyn’s

case is different than that of Lassiter. The mother was disinterested in maintaining contact with

her child after he was taken from her and did not make an effort to contest the termination

proceeding against her. Carolyn on the other hand contested the adoption petition for G.H. and

expressed concern over the termination of her parental rights. “Consideration must be given to

the risk that a parent will be erroneously deprived of his or her child because the parent is not

represented by counsel.” Id. at 29.

C. The Elimination of Arbitrary Laws And The Implementation Of Qualitative Justice Supports The Appointment Of Counsel For All Indigent Parents

The permanent termination of parental rights is one of the most traumatic actions against

the biological parent. It would be unfair to terminate the right of an indigent parent without a

knowledgeable and skilled counsel to assist them during the proceedings. The court concluded

that indigent parents who face termination of parental rights in contested adoption proceedings

have the right to appointed counsel. In the Matter of the Adoption of a Child by J.E.V. and

D.G.V., 226 N.J. 90 (2016). Since the relationship between parent and child no longer exists after

the proceeding, the termination of parental rights implicates the violation of a fundamental

liberty interest. Id. In both state-initiated and private proceedings, the indigent parent is faced

with the great magnitude of loss, and both result in the “complete severance of the parent-child

relationship.” In re K.L.J., 813 P.2d at 284. A parent’s desire for and right to “the

companionship, care, custody, and management of his or her children is an important interest

that undeniably warrants deference and, absent a powerful countervailing interest, protection.”

Stanley v. Illinois, 405 U.S. 645, 651 (1972).

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It is necessary to consider the daily manifestations of economic and racial inequality of

indigent parents in parental termination proceedings. “Women are trying to raise their kids under

tremendous economic and psychological pressures. Often, they have faced significant

challenges, like homelessness or incarceration. They love their children and cherish their identity

as parents. But in court, they face the loss of what is most precious to them: their children.”

Emma S. Ketteringham, Live in a Poor Neighborhood? Better Be a Perfect Parent. The New

York Times (Aug. 22, 2017). Having the aid of counsel would “not only protect parental rights,

but also make parents feel less alienated and victimized by the process and its results.” In re

Gault, 387 U.S. 1, 26 (1967). Empirical data shows that “the results in dependency and neglect

proceedings are significantly affected by whether parents are represented by attorneys provides

support for the argument that an indigent parent without counsel has been denied equal

protection.” Jean W. Sutton, Parent’s Right to Counsel in Dependency and Neglect Proceedings,

Indiana Law Journal (1973), 49:1, 175. New York family courts indicated that “parents who

were not represented by counsel were much more likely than parents who were represented to

lose custody of their children. Id. A positive result of providing counsel would “increase parental

confidence in the integrity of the judicial process and diminished hostility toward the courts.” Id.

at 178.

Although states have not traditionally provided counsel for indigent parents in private

proceedings, many have begun to recognize the importance of protecting parental rights. The

loss of custody is a serious penalty for parents, and it leads to even more harsh consequences

where the parent is indigent. The reform is not only responsive to the constitutional argument of

due process and equal protection but also to the strong policy reason of appointing counsel for

indigent parents.

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CONCLUSION

WHEREFORE, for the reasons set forth above, Petitioner ask this Court to reverse the

decision of the Court of Appeals and remand the case for further proceedings.

Respectfully Submitted, ________________________

Team No. 12 Counsel for Petitioner