E.P. v. Marion County Office of Family and Children

• Decision Date: 20 July 1995
• Docket Number: No. 49A05-9306-JV-235,49A05-9306-JV-235
• Parties: In the Matter of E.P. and J.P., Tonya Dunn, Appellant-Respondent, v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 1026

653 N.E.2d 1026

In the Matter of E.P. and J.P., Tonya Dunn, Appellant-Respondent, v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner.

No. 49A05-9306-JV-235.

Court of Appeals of Indiana.

July 20, 1995.

Jane Ruemmele, Indianapolis, for appellant.

Peter M. Racher, Plews & Shadley, Indianapolis, Richard A. Waples, Legal Director, Indiana Civil Liberties Union, Indianapolis, for amicus curiae Indiana Civil Liberties Union.

Andrew P. Wirick, Chief Counsel, Litigation, Office of Corp. Counsel, Indianapolis, for amicus curiae Marion County, Indiana.

Kenneth J. Falk, Jacquelyn E. Bowie, Legal Services Organization of Indiana, Inc., Indianapolis, for amicus curiae Legal Services Organization of Indiana, Inc.

Elizabeth G. Filipow, Marion County Office of Family and Children, Indianapolis, for appellee.

OPINION

RUCKER, Judge.

In this interlocutory appeal we address two issues: 1) whether a parent in a Child in Need of Services (CHINS) ¹ proceeding is entitled to a jury trial; and 2) whether a parent in a Child In Need of Services (CHINS) proceeding is entitled to court-appointed counsel.

On August 10, 1992, the Marion County Office of Family and Children (Welfare Department) filed a petition in the Marion Superior Court, Juvenile Division, alleging that the children of Tonya Dunn, J.P., and E.P were in need of services. The petition followed allegations that J.P. had been sexually molested by Dunn's boyfriend. Dunn appeared for an initial hearing on August 19, 1992, at which time the court advised her that she had a right to an attorney and also the right to a continuance in order to obtain an attorney. After explaining that the CHINS proceeding was not a criminal matter the trial court continued, "[t]hat also means though, the Court is not responsible to appoint an attorney for you. If you want a lawyer and can't afford one, there are several organizations available in Marion County to represent you. They include Legal Aid Society, Legal Services Organization and a program through the Indianapolis Bar Association called the Pro Bono Panel." Record at 134-135. Dunn then requested a continuance for the purpose of obtaining counsel.

At the continued hearing on September 2, 1992, Dunn again advised the court that she had been unable to obtain counsel. Dunn also denied the allegations in the CHINS petition. After the Welfare Department indicated that it would need to conduct discovery, the trial court set the matter for pre-trial conference. At the pre-trial conference conducted October 14, 1992, the subject of Dunn obtaining counsel was not raised. The trial court ordered that the children were to remain under the supervision of the Welfare Department while placed with the children's father. The case was set for a factfinding hearing on January 6, 1993. In the interim between the pre-trial conference and the factfinding hearing the Welfare Department filed a motion to compel Dunn to answer interrogatories which the trial court granted. When Dunn failed to comply with the trial court's order the Welfare Department filed a motion for sanctions. The trial court granted the motion by prohibiting Dunn from calling witnesses at the factfinding hearing or from introducing evidence to controvert certain allegations, namely (1) that Dunn's boyfriend digitally penetrated J.P., (2) that the boyfriend told J.P. not to tell anyone what had happened, and (3) that J.P. nonetheless told Dunn who advised her boyfriend not to do it anymore.

The factfinding hearing ultimately began March 3, 1993, and again Dunn appeared without counsel. The Welfare Department called as a witness Kelly Verbeck, a social worker with Child Protective Services. Ms. Verbeck recounted the contents of a medical report concerning J.P., her conversations with the physician who treated J.P., and testified as to what the physician told her that J.P. said to him. Ms. Verbeck also testified concerning what she had been told by a police detective investigating the child molesting allegations. The Welfare Department then rested. Dunn took the stand in her own defense. However, because related criminal charges were pending against her, the trial court first admonished Dunn concerning the possibilities of self incrimination, and then decided to continue the hearing so that Dunn could consult with an attorney. The continued hearing began June 23, 1993, at which time counsel appeared for Dunn for the limited purpose of requesting court-appointed counsel on Dunn's behalf and demanding a jury trial. The court denied both motions and this interlocutory appeal ensued in due course.

I.

Dunn contends the trial court erroneously refused her demand for a jury trial. According to Dunn her entitlement to a jury arises from three sources: Article I § 20 of the Indiana Constitution, the Seventh Amendment to the United States Constitution, and Ind.Trial Rule 38.

We first observe that Ind.Code § 31-6-7-10(c) specifically provides "[a]ll matters in juvenile court shall be tried to the court, except that a trial of an adult charged with a crime, unless he requests a bench trial, shall be tried to a jury." (Emphasis added.) Dunn does not challenge the foregoing statute as unconstitutional. Rather, she asserts it is not sufficiently specific to deny parents in CHINS proceedings the right to trial by jury. We disagree. The statute makes clear that except in those instances where an adult is charged with a crime "all matters" within the jurisdiction of the juvenile court shall be tried by the court rather than a jury. There is no question that with exceptions not relevant here, a juvenile court has exclusive original jurisdiction in proceedings in which a child is alleged to be in need of services. Ind.Code § 31-6-2-1.1. Contrary to Dunn's assertion, the statute here is specific and precludes any entitlement to trial by jury.

As for the Indiana Constitutional right ² to a jury trial the law is settled. The right has been construed to apply only to actions triable by jury at common law. Gray v. Monroe County DPW (1988), Ind.App., 529 N.E.2d 860 citing State ex rel. Gannon v. Lake Circuit Court (1945), 223 Ind. 375, 61 N.E.2d 168. Because no special judicial system for juveniles existed at common law, Bible v. State (1970), 253 Ind. 373, 254 N.E.2d 319, 320, juvenile matters obviously were not triable by jury. Thus, we have consistently held that Art. I § 20 does not give a party a right to a jury in juvenile court proceedings. Gray, 529 N.E.2d at 861; see also, Shupe v. Bell (1957), 127 Ind.App. 292, 141 N.E.2d 351.

Dunn acknowledges the foregoing cases but challenges their continued validity by arguing the cases do not distinguish between proceedings which focus primarily on the acts of the juvenile and the juvenile's right to a trial by jury versus the legal interest of parents where it is alleged that the parents neglected their children. We find this argument unpersuasive. In both Shupe and Gray we specifically considered a parent's right to a jury trial in the CHINS context. In Gray we held that the father of a child adjudged a CHINS was not entitled to a trial by jury because such a right would not have been afforded him at common law. Gray, 529 N.E.2d at 861. In Shupe we determined that a neglect proceeding was "in the nature of a civil proceeding and [ ] not triable by jury." Shupe, 141 N.E.2d at 352. The law in this area is settled and we decline the implied invitation to change it.

Dunn's argument that the Seventh Amendment to the United States Constitution ³ guarantees her a right to trial by jury is contrary to existing case authority. The Amendment's guarantee of a jury trial is a limitation on the federal government and does not prohibit states from restricting the right in state courts. State Line Elevator, Inc. v. Board of Tax Comm'rs (1988), Ind.Tax, 526 N.E.2d 753, reconsideration granted 528 N.E.2d 501; Hiatt v. Yergin (1972), 152 Ind.App. 497, 284 N.E.2d 834, trans. denied; Iacaponi v. New Amsterdam Casualty Co., 258 F.Supp. 880 (W.D.Pa.1966), aff'd, 379 F.2d 311 (3d Cir.1967), cert. denied, 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 849, (1968); Voigt v. Webb, 47 F.Supp. 743 (E.D.Wash.1942). Indeed individual states may even abolish the right to jury trials. New Jersey Chiropractic Ass'n v. State Bd. of Medical Examiners, 79 F.Supp. 327 (D.N.J.1948). Although Indiana has not abolished the right to trial by jury, our courts have long held that the Seventh Amendment to the United States Constitution is not applicable to trials in this state's courts. Hiatt, 284 N.E.2d 834; Hayworth v. Bromwell (1959), 239 Ind. 430, 158 N.E.2d 285. Accordingly, Dunn's reliance on the Seventh Amendment is misplaced.

Without elaboration or citation to authority Dunn asserts "Trial Rule 38 provides for the right to trial by jury." Brief of Appellant at 16. Dunn is mistaken. Section (B) of the rule provides in pertinent part:

Any party may demand a trial by jury of any issue triable by right of a jury by filing with the court and serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten days after the first responsive pleading to the complaint, or to a counterclaim, cross-claim or other claim if one properly is pleaded; and if no responsive pleading is filed or required, within ten days after the time such pleading otherwise would have been required.

(Emphasis added.) Setting aside the fact that Dunn did not satisfy the ten-day requirement for requesting a jury trial, her argument nonetheless fails. Trial Rule 38(B) does not provide a right to a jury trial; rather, it merely sets forth the procedure for exercising the right where the right already exists. As previously discussed, CHINS proceedings are not triable to a jury as a matter of right. See Gray v. Monroe County DPW (1988), Ind.App., 529 N.E.2d 860; Shupe v. Bell (1957), 127 Ind.App. 292, 141 N.E.2d 351. The trial court...