“Maybe I should get an attorney, because I don’t know how to cross-examine,” she said in court, where she was flustered to find herself face-to-face with the boys’ relatively well-off aunt and uncle, who did have an attorney. The presiding magistrate ignored her request, which had been previously denied by a judge.
Alone Before the Law
Now, thanks to Ms. Starkey herself, that affront to justice is no longer the law in Ohio. Legal Aid lawyers in Columbus appealed her case all the way to the state Supreme Court, which ruled in December that impoverished parents are entitled to court-appointed lawyers in adoption cases. Ms. Starkey plans to return to court to fight for her boys — this time with a lawyer to help her stave off the unwanted adoption.
The Ohio case marks progress in an important state, but litigants elsewhere in disputes involving adoption will not be so lucky. According to the National Coalition for a Civil Right to Counsel, 23 states confer no automatic right to counsel to indigent parents struggling to retain their children, much as many states offer no guarantee of counsel to destitute renters facing eviction, homeowners threatened with foreclosure, or adults who might lose control of their homes, property or bank accounts to court-appointed guardians.
When it comes to fighting for what is most precious — their assets, the roofs over their heads, their liberty, even their children — millions of Americans routinely go to court alone, untutored in the law and with the odds stacked heavily against them. In criminal cases, even petty ones where prison time is unlikely, courts will appoint a lawyer for defendants too poor to hire one, in keeping with a 1963 U.S. Supreme Court ruling. But in noncriminal cases, the high court has refused to grant the same right, even while acknowledging that it may be wise policy for states to enact it on their own.
The dangers in that optional arrangement are rarely more evident than when parental rights hang in the balance.
Sometimes it is in a child’s best interest to be removed from a parent; sometimes it isn’t. When state governments allege abuse or neglect, poor parents are generally entitled to a court-appointed lawyer — though sometimes they get one too late in the process to make a difference. But in so-called private adoption cases such as Ms. Starkey’s — typically brought by relatives who accuse parents of being unfit or incapable of caring for a child — many states think it’s fine to allow parents to fend for themselves.
Ms. Starkey’s example is stark evidence that those states are wrong, and that their notion of justice is warped. While Ohio and a few other states have recently established a blanket right to court-appointed lawyers in such cases, others have rescinded the right (Louisiana) or are considering doing so (Missouri).
Penniless parents such as Ms. Starkey are usually unversed in the law — and, not surprisingly, may be confused by legalese, unnerved by arcane procedures, and intimidated by judges and, sometimes, opposing lawyers, who brandish legal fine points like rapiers. The following excerpt from Ms. Starkey’s day in court exemplifies her confusion and how she was left to fend for herself:
She repeated her plea, but the magistrate ignored it — “Right”:
Ms. Starkey had shifted custody of the boys to their aunt and uncle in 2015, a move she calls “the biggest mistake of my life.” She did so when the twins’ father, who was on the lam and facing federal drug charges, emptied the house they had shared, taking furniture and appliances. Ms. Starkey, who makes a meager income caring for people with developmental disabilities, knew she could not provide for 6-month-old boys in a home lacking even a refrigerator. Desperate, she turned to the aunt and uncle and signed over custody — also without a lawyer’s advice. She retained custody of her daughter, then a toddler, and has raised her ever since.
Ms. Starkey, now 38, assumed she would get the boys back when she could rebuild her life. But as time went on, her relationship with the aunt and uncle, who were attached to the twins, became strained. Then adoption papers arrived in the mail, summoning her to probate court.
What followed left her reeling. Flustered at finding herself face-to-face with the aunt and uncle, she stumbled through cross-examination by the couple’s attorney, floundered when instructed to pose her own questions and quickly realized she was in over her head. “I felt like a lamb being fed to the lions,” Ms. Starkey told us, describing her day in court. “It was humiliating.”
Too many Americans in Ms. Starkey’s position have been similarly humiliated, and deprived of meaningful access to justice in the process. Poverty condemns them to fighting impossible odds. States, by refusing to pass laws and appropriate funds to provide court-appointed counsel, are complicit in the injustice.
Ms. Starkey’s boys are 6 years old now. Even if she manages to stave off the aunt and uncle’s effort to adopt them, she is highly unlikely to get a court-appointed lawyer to help her win back custody — a completely different procedure under Ohio law. In effect, having signed over legal custody, she faces the possibility of an open-ended sentence whose punishment is the indefinite loss of her sons, with no lawyer to help her retrieve them.
“I’ve been in pain for so long,” she said. “I feel half alive without my children.”