# State ex rel. Heller v. Miller > Ohio Supreme Court · January 2, 1980 · 61 Ohio St. 2d 6 URL: https://www.frixlaw.com/law-library/cases/6756704 ## Case - **Full name:** The State, ex rel. Heller v. Miller, Judge - **Court:** Ohio Supreme Court - **Decided:** January 2, 1980 - **Citations:** 61 Ohio St. 2d 6; 15 Ohio Op. 3d 3; 399 N.E.2d 66; 1980 Ohio LEXIS 601 - **Precedential status:** Published - **Opinion:** Dissent by Holmes - **Judges:** Brown, Celebrezze, Herbert, Holmes, Locher, Sweeney - **Cited by:** 221 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled in part, on other grounds by Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18 (1981). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6756704 ## How later opinions describe it (automated extraction) - holding that “in actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions’ guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a… - stating that the Ohio Constitution’s guarantees of due process and equal protection are substantially equivalent to the United States Constitution’s guarantees, and a court may look to decisions of the United States Supreme Court to give meaning to the guarantees of Article I … - holding that actions instituted to force the permanent, involuntary termination of parental rights required that indigent parents be provided with counsel and a transcript at public expense - stating that Ohio courts may look to decisions of the United States Supreme Court to give meaning to Ohio’s Due Course of Law Clause ## Opinion text Holmes, J., dissenting. Although I dissent from the majority opinion herein, for a number of basic reasons, I wish to state at the outset that my dissent is not by way of lack of sympathy for these natural parents who have lost their parental rights in this child. I do have deep feeling for them. But they have been afforded due process of law—and beyond. They had all the procedural hearings afforded to them by law, with the rulings made by a judge upon all necessary points of law and fact. Further, it must be pointed out that they were, pursuant to R. C. 2151.352, in fact represented by appointed counsel at the trial level, and we may assume, absent a specific showing to the contrary, that such representation was adequate. There is no similar statute providing legal counsel for indigents in appeals from a determination of parental rights, *15 therefore there is no clear legal right for the issuance of a writ of mandamus based upon the Court of Appeals failing to follow a specific statute. The next question to be answered is whether there is constitutional right to the appointment of legal counsel, and for the provision of a transcript of proceedings for purposes of appeal of a determination of parental rights. The United States Supreme Court has clearly established that there exists a constitutional right for indigents to have trial counsel appointed for them in those criminal cases where they will be incarcerated if convicted. Argersinger v. Hamlin (1972), 407 U. S. 25 . In addition, indigent defendants have the right to appointed counsel in appeals as of right, Douglas v. California (1963), 372 U. S. 353 , and are entitled to a free transcript where necessary to effective review. Griffin v. Illinois (1956), 351 U. S. 12 . These rights also inhere in collateral attack proceedings against criminal convictions. Smith v. Bennett (1961), 365 U. S. 708 . However, all these rights belong only to indigents involved in criminal proceedings. It does not follow that they should automatically be granted in civil proceedings, regardless of the importance of the right at stake therein. In this state the right to have appointed counsel for those who are indigent has not been extended to civil cases other than those involving involuntary commitment to mental institutions. In re Fisher (1974), 39 Ohio St. 2d 71 . I recognize that the right to raise one’s children is a basic civil right of man, but that right has been tested within the protective framework of the trial proceeding here. The rights of the parents were not only protected by way of a lawful hearing before a judge, but also by way of an appointed trial counsel. Where will the right to have appointed counsel and transcripts at state expense end? Indigent citizens may claim that many other activities or elements of their lives are based upon a constitutionally protected civil right, and seek appointed counsel in a legal proceeding, whether the nature of such proceeding be within the realm of contract negligence or property law. The General Assembly has not provided for court- *16 appointed appellate counsel at public expense in any civil' actions, even though, as in these types of proceedings, it has provided for appointed counsel at the trial level. The fact that counsel may not be appointed in appealing civil actions does not deny a right to counsel. Where, in fact, inequities may exist, by reason of economic or social condition, the government has provided for the availability of counsel in civil cases by a means distinct and separate from the requirements for appointment of counsel in criminal cases or those cases where an individual’s liberty is in jeopardy. Parenthetically, it should be pointed out that there are many organizations throughout the state, including the county from which this appeal emanated, providing a legal aid service. If indigents with a civil matter apply to such agencies, there is reasonable opportunity for legal representation. In my view, it is not required to construe the Constitutions of the United States or the state of Ohio as mandating the provision of legal counsel for all those unable to so provide for themselves in all civil cases at the trial level and upon appeal. Nor should such construction be required in response to the request for a transcript of proceedings for purposes of appeal of a civil matter. Our society neither demands, nor desires, such a burden being placed upon it. Courts should not engraft such a burden upon it. Again, there is no clear legal right for the issuance of this writ, and I would accordingly deny it. P. Brown, J., concurs in the foregoing dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6756704. Public record. Not legal advice.