In The Matter of The TERMINATION of The PARENT-CHILD RELATIONSHIP of I.B v. Ind. Dep't of CHILD Serv., 03S05-1004-JV-218.

• Decision Date: 21 September 2010
• Docket Number: No. 03S05-1004-JV-218.,03S05-1004-JV-218.
• Parties: In the Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF I.B., Minor Child, and M.L., Child's Mother, Appellant (Respondent below), v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner below).
• Court: Indiana Supreme Court

933 N.E.2d 1264

In the Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF I.B., Minor Child, and M.L., Child's Mother, Appellant (Respondent below),

v.INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner below).

No. 03S05-1004-JV-218.

Supreme Court of Indiana.

Sept. 21, 2010.

Joel Schumm, Indianapolis, IN, Daniel B. Schuetz, Franklin, IN, Attorneys for Appellant.

Robert Henke, Indianapolis, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 03A05-0912-JV-676

SULLIVAN, Justice.

Following termination of an absent mother's parental rights, the juvenile court declined to appoint counsel to appeal the termination. Indiana law requires court-appointed counsel for an indigent parent who appeals the termination of his or her parental rights-but only where the parent himself or herself authorizes the appeal.

Background

Mother gave birth to Child on July 9, 2007. Several days later, the Bartholomew County Office of the Indiana Department of Child Services (“State”) removed newborn Child from Mother after Child tested positive for amphetamines. At the dispositional hearing on October 9, 2007, Mother admitted that Child was a Child in Need of Services (“CHINS”). The juvenile court adjudicated Child a CHINS on the same day and ordered Mother to participate in a series of services in order to establish her ability to provide appropriate care for Child. As part of the dispositional decree, the court ordered Mother to complete drug screens at the State's request.

In July and August, 2007, Mother complied with the requested drug screens and had negative results. However, after August, 2007, Mother did not keep to the scheduled visits, individual counseling sessions, or the drug screens. Mother, who had a history of drug and alcohol abuse, also refused to complete a required substance abuse evaluation. In December, 2007, Mother moved in with her mother (“Grandmother”), the relative caregiver for Child; Grandmother remained the primary caregiver for Child. During this time, Mother would be away from the home for long periods of time and was frequently intoxicated.

In February, 2008, a case manager for the State advised Mother that termination would be recommended if she did not follow through with her case plan. In March, 2008, Grandmother ordered Mother to leave the home because of Mother's excessive alcohol consumption. Thereafter, Mother missed numerous supervised visits and individual counseling sessions, and she had no further contact with Child after April, 2008. Consequently, the State terminated Mother's services and recommended the termination of Mother's parental rights. After this recommendation, Mother had no contact with any service providers (or Grandmother).

In October, 2008, the State petitioned to terminate Mother's parental rights. The State performed service through publication and submitted an affidavit from a case manager showing that it made a diligent search for Mother. Although Mother did not appear for any of the termination proceeding, the court appointed counsel to represent her. Before the start of the termination hearing, counsel moved to withdraw; he explained that he had never met Mother, had had no contact with her, and did not know how to locate her. The court declined counsel's request to withdraw.

In February, 2009, the juvenile court held a termination hearing; counsel participated in the hearing. Grandmother testified that she notified Mother of the hearing, but Mother indicated that she did not want anything to do with the State. Grandmother further testified that she had no address or telephone number to reach Mother. Based on the evidence presented at the hearing, on July 28, 2009, the court issued an order terminating Mother's parental rights.

Counsel filed a notice of appeal and moved for the appointment of appellate counsel. Counsel admitted, however, that he had never had contact with Mother and did not know whether she wanted to file an appeal. Counsel stated that he did not wish to do the appeal and that he filed the notice of appeal because he “was obligated to under the terms of [his] contract.” (Appellee's App. 111.) ¹

The juvenile court denied the motion to appoint appellate counsel but appointed counsel to appeal this decision. The Court of Appeals affirmed the juvenile court's denial of the motion to appoint appellate counsel. In re Termination of the Parent-Child Relationship of I.B. and M.L., 922 N.E.2d 62, 68 (Ind.Ct.App.2010). Counsel for Mother sought, and we granted, transfer. Ind.App. R. 58(A).

Discussion

I

In Indiana, the right to counsel in proceedings to terminate parental rights is granted by statute. Indiana Code section 31-32-2-5 provides that “[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship.” Indiana Code section 31-32-4-1 provides that “[t]he following persons are entitled to be represented by counsel: ... (2) [a] parent, in a proceeding to terminate the parent-child relationship, as provided by IC 31-32-2-5.” And Indiana Code section 31-32-4-3 further explains that:

(a) If:

(1) a parent in proceedings to terminate the parent-child relationship does not have an attorney who may represent the parent without a conflict of interest; and

(2) the parent has not lawfully waived the parent's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);

the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time.

Indiana courts have held that parents whose parental rights are being terminated against their will have three rights: (1) the right to be represented by counsel; (2) the right to have counsel provided if the parent is indigent; and (3) the right to be informed of the two preceding rights. Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind.Ct.App.1991), trans. denied.

The Court of Appeals in this case limited “proceeding” to the time between the commencement and the entry of judgment on the termination of parental rights determination and cited Black's Law Dictionary to support its assertion. ² In re I.B. and M.L., 922 N.E.2d at 66. Black's Law Dictionary, however, provides several definitions for the word “proceeding.” They include:

1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing.

1324 (9th ed. 2009). In our view, a “proceeding” is not limited to the trial court stage. According to the second Black's entry, for example, a proceeding encompasses any step in the process of a resolution of a matter before a court. Thus, for the purposes of the statutes implicated in this case, a proceeding does not limit the appointment of counsel to the trial proceeding but rather applies to the entire process, including through the direct appeal proceeding. See, e.g., Thompson v. Thompson, 811 N.E.2d 888, 929 (Ind.Ct.App.2004) (allowing attorney fees to be awarded for proceedings occurring after entry of final judgment in marriage dissolution proceedings), trans. denied, 831 N.E.2d 740 (Ind.2005).

Other jurisdictions with similar statutory language have found a right to appointed appellate counsel. See In re Adoption of K.L.P., 198 Ill.2d 448, 261 Ill.Dec. 492, 763 N.E.2d 741, 753 (2002) (finding that an indigent parent had a statutory right to counsel on appeal in termination of parental rights cases); In re Jacqueline H., 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, 687 (1978) (concluding “that the Legislature could not have intended to withhold from an indigent parent the right to an effective appeal, and, therefore, the services of appellate counsel in [termination] proceedings”); In re Chambers, 261 Iowa 31, 152 N.W.2d 818, 820-21 (1967) (holding that an indigent parent in exercising her statutory right of appeal from a decree severing her parental rights was entitled to assistance of counsel at public expense). The Iowa Supreme Court stated that:

We see no reason why the appointment of counsel for plaintiff under [the statute] should be construed to terminate when the hearing before the juvenile court was concluded. That section does not so provide; and when plaintiff was given the statutory right to appeal, it must have been contemplated that such an appeal would require the services of counsel.

Id. at 821.

The Legislature has provided for counsel in proceedings to terminate the relationship of parent and child. I.C. § 31-32-2-5. The statute ensures that parents who are indigent are provided access to the courts in what is “among the most severe forms of state action.” M.L.B. v. S.L.J., 519 U.S. 102, 128, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The need for counsel to protect the interests of a parent does not diminish on appeal. We hold that our statutes dictate that the right to counsel continues through all stages of the proceeding to terminate the parent-child relationship, including appeal.

II

A

As discussed above, the Indiana Code provides parents the right to representation by counsel in termination proceedings, including appeals. This case presents the dilemma counsel faces where, after a client's parental rights have been terminated, the client does not cooperate or communicate his or her instructions with respect to an appeal to the attorney. In an ordinary civil case in tort or contract, an attorney cannot proceed without a client's instruction. In the words of the United States Court of Appeals for the Second Circuit: “[a]n attorney's only ethical obligation is to serve his client loyally and competently.... Hence a client's decision not to pursue an appeal is one a lawyer must abide by because such a decision is exclusively that of the client.” Soliman v. Ebasco Servs., Inc., 822 F.2d...