Involuntary Termination the Parent-Child Relationship G.P. v. Ind. Dep't of Child Servs. & Child Advocates, Inc.

• Decision Date: 13 March 2014
• Docket Number: No. 49S02–1308–JT–558.,49S02–1308–JT–558.
• Citation: 4 N.E.3d 1158
• Parties: In re the Involuntary Termination of the Parent–Child Relationship of G.P., a Minor Child, and his Mother, J.A. J.A., Appellant (Respondent below), v. Indiana Department of Child Services and Child Advocates, Inc., Appellees (Petitioners below).
• Court: Indiana Supreme Court

4 N.E.3d 1158

In re the Involuntary Termination of the Parent–Child Relationship of G.P., a Minor Child, and his Mother, J.A.

J.A., Appellant (Respondent below),

v.Indiana Department of Child Services and Child Advocates, Inc., Appellees (Petitioners below).

No. 49S02–1308–JT–558.

Supreme Court of Indiana.

March 13, 2014.

Amy E. Karozos, Ruth Ann Johnson, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Patrick M. Rhodes, Indianapolis, IN, Attorneys for Appellee.

Annette S. Biesecker, Adam C. Mueller, Indianapolis, IN, Attorneys for Amicus Curiae, Indiana Legal Services, Inc.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02–1208–JT–643

DAVID, Justice.

We have always said that a parent's due process rights are vital during court proceedings aimed at determining whether the parent's child is a Child in Need of Services. Here, a mother waived her right to counsel at an initial CHINS hearing and her son was found to be a CHINS. At a subsequent CHINS review hearing, the mother requested counsel and the trial court found that she was indigent and entitled to representation—but it failed to actually follow through and appoint an attorney to her case.

After additional CHINS hearings at which the mother remained unrepresented, the Department of Child Services filed an action to involuntarily terminate the mother's parental rights with respect to her son. At the mother's request, the trial court appointed counsel to represent her during the TPR process. But even with representation at this stage, her parental rights were terminated and her son has since been adopted by his paternal grandparents. We now assess the impact of the failure to appoint counsel for the mother during the CHINS process.

Facts and Procedural History

J.A. was G.P.'s mother.¹ G.P. was born on June 5, 2009, and on October 5, 2010, DCS filed a petition alleging that G.P. was a CHINS because his mother had a history of drug abuse that hindered her ability to care for G.P. At an initial hearing before the CHINS court on October 13, 2010, J.A. waived her right to counsel. J.A. admitted the allegations presented in the CHINS petition and G.P. was placed with his paternal grandparents with J.A.'s consent. As part of its dispositional decree, the CHINS court ordered J.A. to comply with a number of requirements and services aimed at reunifying her with G.P.

At a subsequent review hearing in February 2011, J.A. requested appointed counsel. The CHINS court conducted an indigency examination and found she was entitled to counsel. But for reasons unknown, the court did not then actually appoint counsel for J.A.; it continued with the hearing instead. And during the hearing, DCS reported several violations of J.A.'s obligations under the dispositional decree. The court ordered G.P. to remain with his grandparents, but still viewed reunification with J.A. as the plan for permanency.

In May 2011, J.A. appeared at another review hearing, still without counsel. This time the CHINS court did not even ask if she wanted counsel before proceeding.² In this hearing, DCS again alleged that J.A. had violated her obligations under the dispositional decree. It requested that a permanency hearing be set. J.A. effectively admitted to DCS's allegations, but said that she was turning herself around and wanted to re-engage with her required services in order to get custody of G.P. The CHINS court set the matter for an August 16, 2011, permanency hearing.

J.A. failed to appear for the August 16 hearing, and the court apparently still believed she “was representing herself in this matter.” (Supp. App. at 32.) The hearing proceeded, and DCS stated that it had not had contact with J.A. since the May review hearing and that she had not actually re-engaged with services. G.P.'s guardian ad litem added that G.P. was doing very well with his paternal grandparents, and—with DCS's agreement—therefore sought to change the permanency plan from reunification with J.A. to adoption by the grandparents. The CHINS court agreed that it would be in G.P.'s best interest to change the plan to adoption.

On August 18, 2011, DCS filed a petition to terminate the parent-child relationship between J.A. and G.P. The trial court set the matter for an initial hearing on September 11, 2011. J.A. did not appear for that hearing, nor did counsel appear for her, and the court continued it to September 30, 2011. Neither J.A. nor counsel on her behalf appeared for this second hearing, either, so the trial court continued it again. DCS also requested a default hearing. On December 6, 2011, the trial court tried to hold its previously continued hearing, but J.A. again did not appear in person or by counsel. The trial court then set J.A.'s case for a default hearing on January 12, 2012. DCS requested this hearing be continued, and the court set it for February 16, 2012.

On January 29, 2012, J.A. filed a letter with the court requesting to have counsel appointed in her case. The court then appointed a public defender to represent J.A. and changed the February default hearing to a pre-trial hearing. J.A. did not appear at the pre-trial hearing, but her lawyer did. The matter was set for trial to begin on April 9, 2012.

J.A. filed a motion to dismiss, arguing that she had been deprived of due process in that she requested counsel in February 2011, but counsel had not been appointed until nearly a year later—and only after J.A. requested it again. She argued that had counsel been appointed, she would have had representation at the hearings she missed, and such counsel would have been able to inform the court of the reasons for her absence—and that those reasons related to her efforts to re-engage in services, maintain her sobriety, and have a healthy and drug-free pregnancy with a second child. But because her interests were unrepresented at the review hearings and permanency hearings, J.A. said, the CHINS court never heard those facts. The trial court denied her motion.

A three-day trial was held, on days in April and June 2012.³ On July 10, the trial court issued its order terminating the parent-child relationship between G.P. and J.A. A month later, G.P. was adopted by his grandparents. ⁴ J.A. appealed, arguing that the evidence was insufficient to justify the termination of her parental rights and that she was denied due process by not receiving appointed counsel after she had been found to qualify.

The Court of Appeals affirmed. In re G.P., J.A. v. Ind. Dep't of Child Servs., 985 N.E.2d 786 (Ind.Ct.App.2013), reh'g denied. Though it was “disappointed” that the CHINS court failed to appoint counsel for J.A. even though she qualified, it neverthelessfound the error to be harmless. Id. at 791. It also concluded that the evidence presented at the eventual TPR proceeding was sufficient to sustain the trial court's determination that termination of J.A.'s parental rights was in the best interests of G.P. Id. at 792. We granted transfer, thereby vacating the Court of Appeals opinion. In re G.P., J.A. v. Ind. Dep't of Child Servs., 993 N.E.2d 182 (Ind.2013) (table); Ind. Appellate Rule 58(A). Because we find it dispositive, we address only J.A.'s due process claim and its impact on the subsequent proceedings.

I. J.A.'s Due Process Claim

J.A. argues that the CHINS court, by telling her it would appoint a lawyer to represent her but failing to do so, denied her constitutional right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution. SeeU.S. Const., amend. XIV, § 1. We agree.

A. J.A. Had a Right to Counsel.

Indiana Code section 31–32–4–3 provides that “[t]he court may appoint counsel to represent any parent in any other proceeding.” Ind.Code § 31–32–4–3(b) (2008) (emphasis added). And Indiana Code section 31–32–4–1 likewise includes, among its list of persons entitled to counsel, “[a]ny other person designated by law.” Ind.Code § 31–32–4–1(3) (2008). DCS argues that these two statutes, when read together, mean that appointment of counsel in a CHINS proceeding is a matter of trial court discretion and not a statutory right.

This position is consistent with past appellate decisions in this state. See In re M.M., M.M. v. Elkhart Office of Family & Children, 733 N.E.2d 6, 10–11 (Ind.Ct.App.2000) (finding presumption against court-appointed counsel in CHINS proceedings, and statutory scheme made appointment subject to abuse of discretion review); In re E.P., J.P. v. Marion Cnty. Office of Family & Children, 653 N.E.2d 1026, 1031–32 (Ind.Ct.App.1995) (presumption against appointment of counsel in civil proceedings where individual's personal liberty not at stake, and appointed counsel not compelled in CHINS proceeding under Mathews[ Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ] balancing test). But as the Court of Appeals and J.A. point out, there is a third statute that is relevant here—one that DCS inexplicably fails to address in its brief and that the Court of Appeals was unsure on how (or if) to apply. See In re G.P., 985 N.E.2d at 789.

Indiana Code section 31–34–4–6 enumerates a number of legal rights afforded to the parent of a child alleged to be abused or neglected when that child is subject to detention by DCS or DCS has filed a CHINS petition, and requires DCS to inform the parent, in writing, of those rights. Ind.Code § 31–34–4–6 (2008). One such right given to the parent is “[t]he right to ... be represented by an attorney ... at each court proceeding on a petition alleging that the child is a child in need of services.” Ind.Code § 31–34–4–6(a)(2)(A). And importantly, “[t]he parent ... has the right to be represented by a court appointed attorney under clause (A) upon the request of the parent ... if the court finds that the parent ... does not have sufficient financial means for obtaining representation as described in IC 34–10–1.” Ind.Code § 31–34–4–6(a)(2) ...