Baker v. Marion County Office of Family & Children

• Decision Date: 29 June 2004
• Docket Number: No. 49S02-0209-JV-00473.,49S02-0209-JV-00473.
• Citation: 810 N.E.2d 1035
• Parties: Sharon BAKER and Daryl Cole, Appellant (Defendant below), v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN and Child Advocates, Inc., Appellees (Plaintiff below).
• Court: Indiana Supreme Court

810 N.E.2d 1035

Sharon BAKER and Daryl Cole, Appellant (Defendant below), v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN and Child Advocates, Inc., Appellees (Plaintiff below).

No. 49S02-0209-JV-00473.

Supreme Court of Indiana.

June 29, 2004.

Katherine A. Cornelius, Deputy Appellate Public Defender, Ann Sutton, Indianapolis, IN, Attorneys for Appellants.

Stephen A. Carter, Office of the Attorney General, Indianapolis, IN, DeDe Connor, Marion County Office of Family & Children, Sheridan, IN, Loretta Oleksy, Child Advocates, Inc., Indianapolis, IN, Attorneys for Appellees.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 49A02-0105-JV-299.

SHEPARD, Chief Justice.

Mother and Father lost parental rights during a termination proceeding. Their appeal centers on the claim that the trial court did not adequately inquire about their decision to go forward with representation by the same lawyer. They contend that without an adequate demonstration that they understood the consequences of joint representation their right to counsel was violated. They say this right should be judged not by the test of Strickland v. Washington, so often transplanted from criminal law to parental termination cases, but rather by a standard that would make it easier for parents who lose at trial to gain a second one. We conclude otherwise, seeing the question as one of assuring due process in a setting that is dramatically different from criminal proceedings.

Facts and Procedural History

On August 8, 1998, Sharon Baker ("Mother") prematurely delivered a baby girl whom we will call D.C. Mother used cocaine while pregnant, as late as days before delivery. D.C. was hospitalized for about three weeks due to medical concerns, then placed in an emergency shelter, and eventually in foster care. D.C. has never lived with Mother or her father Darryl Cole ("Father").

The Marion County Office of Family and Children ("OFC") filed a petition in August 1998 alleging that D.C. was a child in need of services. Mother and Father admitted in writing and in open court that this was so. The court ordered both parents to complete certain services, namely a substance abuse evaluation and a parenting assessment, in order to have D.C. returned to them. Because such services were ineffective or not completed at all, the court found that it was in D.C.'s best interests to remain outside of the home. The court then ordered Mother and Father into Parental Participation, a social services program obliging both parents to cooperate with various assessments and services.

OFC's assigned family case manager Diane Reach began working on D.C.'s case in August 1998. She explained the court-ordered services to both parents, and sent letters detailing what was required of them and whom to contact for appointments. Both parents participated in the parenting assessment but did not complete it. They received a list of six different agencies offering parenting classes, but as of the fall 1998 neither parent reported completing such classes.

Mother and Father did not maintain consistent visitation with D.C. even though Reach sent them bus tickets and the foster parents offered to meet Mother and Father halfway when they complained of transportation problems. At least two different visitation centers established unsupervised visitation. Still, visits by both parents continued to be inconsistent. Both Mother and Father had thirteen scheduled visits at one of the visiting centers but only appeared at four.

Mother was arrested and incarcerated in Tippecanoe County for cocaine possession, so she missed a scheduled court date in January 1999. Father also failed to appear. Mother then became an inmate at the Indiana's Women's State Prison, from which she regularly mailed letters to Reach and letters and cards to Reach for D.C. Originally, the OFC planned to reunite with Mother and Father, but eventually gave up and petitioned to terminate the rights of both parents in April 1999.

Mother remained in the Women's Prison from January through October 1999, where she had visits with D.C. and completed parenting classes. Upon her release from prison, however, Mother's visits with D.C. waned. In October, Reach made new referrals for Mother and Father for drug and alcohol evaluations and for supervised visits with D.C. Both parents failed to follow through on the new referrals.

During a drug and alcohol assessment in August 2000, Mother told addictions counselor Lance Brown that she had used marijuana, alcohol, and cocaine two to four times a week over the last four years. She also told Brown she was receiving medication for depression and for epileptic seizures, and that she suffered from a partial paralysis in her left hand as a result of a drive-by shooting. Brown recommended treatment for depression and for cocaine dependency at a mental health center. Brown testified that he would "have serious concerns with any child being in the custody of a not treated chemically dependent person." (R. at 18.) Father had been scheduled at least twice for similar assessments but did not show up.

During the termination proceeding, Reach testified based on both parents' instability, inconsistent visitations, and continued chemical addictions it would be harmful to D.C. to be returned to her parents. Father acknowledged not having a residence of his own. He said that he would enter a three-month in-patient treatment program for his alcoholism the week after the termination proceeding. Mother was incarcerated for probation violations during the termination proceedings. She had not been employed since 1996 when she was fired because of frequent tardiness. Her plan to secure income post-jail was to file for social security disability benefits based on her partially paralyzed left hand. Mother, who had seven children, had lost parental rights for all but D.C. She said she smoked $40 to $50 worth of cocaine two days before D.C. was born prematurely. She admitted that although she loved D.C., she could not be a good parent to D.C. until she received treatment. She said, "...my baby don't deserve to keep on waiting on me. But I don't want her to be with no one else." (R. at 137-38.)

The termination petition was before the court for most of 1999 and all of 2000. Several lawyers appeared for the parents, though the parents were frequently absent and one lawyer withdrew because he had no contact with Mother even after several attempts.

Attorney Thomas D. Strodtman first appeared in the case in September 2000. During the final hearing on January 18, 2001, Strodtman acknowledged that he would represent both Mother and Father. He stated that both parties consented to his representing them both and that no conflict resulted because "[t]here's no situation here that we see where Mom or Dad would be blaming each other for the allegations that have been alleged by the Office of Family and Children." (R. at 4.) Mother and Father stated that each agreed to the joint representation.

The trial court terminated parental rights for Mother and Father on February 23, 2001. The Court of Appeals affirmed, holding that ineffective assistance of counsel in termination hearing should be resolved on the same basis as in criminal proceedings and that the joint representation did not pose a conflict of interest. Baker v. Office of Family and Children, 768 N.E.2d 1008 (Ind.Ct.App.2002). We granted transfer. Ind. Appellate Rule 58.

Assistance of Counsel in Termination Proceeding.

As the Supreme Court has explained, the U.S. Constitution does not require the appointment of counsel in every parental termination proceeding. The constitutional assurance of due process calls for counsel where the trial court's assessment of such factors as the complexity of the proceeding and the capacity of the uncounseled parent indicates an appointment is necessary. Lassiter v. Dep't of Social Services, 452 U.S. 18, 27-32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

Rather than incur the time and money to litigate eligibility for public counsel in each case, Indiana has chosen to provide counsel in termination proceedings to all parents who are indigent. Ind.Code Ann. §§ 31-32-4-1 and 31-32-2-5 (West 1998).¹ The Code does not provide for appointment of counsel to seek post-judgment or collateral relief. Our Court of Appeals has said that the statutory right to counsel in termination cases carries the right to performance by counsel measured by the same test applicable to indigent defense in criminal cases. J.T. v. Marion County OFC, 740 N.E.2d 1261, 1265 (Ind.Ct.App.2000).² A substantial number of other jurisdictions have so held.³ We conclude that transporting the structure of the criminal law, featuring as it does the opportunity for repeated re-examination of the original court judgment through ineffectiveness claims and post-conviction processes, has the potential for doing serious harm to children whose lives have by definition already been very difficult.

For one thing, experience in the criminal law with the present system of direct appeals, post-conviction proceedings, and habeas petitions demonstrates that with rare exception counsel perform capably and thus ensure accurate decisions. The correctness of such decisions is at the heart of the assurance that parties in termination cases will receive due process. Lassiter, 452 U.S. at 27, 101 S.Ct. 2153.

Second, criminal prosecutions and termination proceedings are substantially different in focus. The resolution of a civil juvenile proceeding focuses on the best interests of the child, not on guilt or innocence as in a criminal proceeding. As the Supreme Court said when it held that the writ of habeas corpus was not available for collateral attacks on state termination decisions, the parent "simply seeks to relitigate, through federal habeas, not any liberty interest of her sons, but the interest in her own parental rights." Lehman v. Lycoming County Children's Servs....