Petition of McClure
Decision Date | 06 February 1990 |
Docket Number | No. 34A02-8810-CV-373,34A02-8810-CV-373 |
Citation | 549 N.E.2d 392 |
Parties | In the Matter of the Petition of Dennis M. McCLURE to Adopt Benjamin Forest Bauer. Forest O. BAUER, Appellant (Respondent), v. Dennis M. McCLURE, Appellee (Petitioner). |
Court | Indiana Appellate Court |
The appellant Forest O. Bauer (Forest), the natural father of Benjamin Forest Bauer (Benjamin), appeals from the grant of a decree of adoption entered in favor of Dennis M. McClure (Dennis), Benjamin's step-father, and Mary Ann McClure (Mary Ann), Benjamin's natural mother, claiming that he was denied his right to counsel at the final adoption hearing and that the judgment was not supported by sufficient evidence.
We reverse and remand.
The facts most favorable to the judgment reveal that Mary Ann and Forest were married from March, 1980 to June, 1983. Benjamin was born to Mary Ann and Forest on February 2, 1981, in Fort Wayne, Indiana.
In September of 1980, Forest was convicted of burglary, criminal confinement, and being an habitual offender and was sentenced to sixty years in the reformatory at Pendleton, Indiana. From November of 1981 until the divorce in June of 1983, Mary Ann brought Benjamin to visit Forest at the prison at least once a month. When the dissolution decree was entered on June 22, 1983, Mary Ann was granted custody of Benjamin, and Forest was not required to pay child support or granted any specific visitation rights. Visitation became more sporadic and Forest last saw Benjamin on July 7, 1984.
Forest frequently called Mary Ann and wrote her letters between July of 1984 and March of 1985, requesting continued visitation with Benjamin. Forest also sent Benjamin several cards and a Christmas gift.
In March of 1985, Mary Ann married Dennis and the three of them moved to Marlboro, Massachusetts. Forest wrote to Mary Ann's parents requesting her new address, but they did not respond. In June of 1986, Mary Ann moved from Massachusetts to Michigan and then to Kokomo, Indiana, in September of 1987. During this period, Forest continued sending Christmas gifts and birthday cards to Benjamin in care of Mary Ann's parents.
On January 22, 1988, Dennis petitioned to adopt Benjamin. Thereafter, Forest requested appointment of counsel and moved to contest the adoption on April 11, 1988. The trial court denied Forest's request and the adoption hearing was held on June 28. At that time, Forest renewed his request for appointed counsel which was again denied. Forest appeared at the hearing and proceeded pro se. The trial court entered a decree of adoption terminating Forest's parental rights of Benjamin on August 4, 1988.
Because we reverse, we need only address the following issue:
Whether the trial court erred in refusing to appoint counsel to represent Forest at the adoption hearing?
PARTIES' CONTENTIONS--Forest maintains that the trial court abused its discretion in refusing to appoint counsel during the adoption proceedings.
Dennis responds that because there is no express statutory provision requiring appointed counsel in adoption proceedings and there was no infringement of Forest's constitutional rights, the trial court properly refused Forest's request.
CONCLUSION--It is our conclusion that the trial court erred in refusing to appoint counsel for Forest on statutory and constitutional grounds.
Unfortunately there are no relevant Indiana cases directly on point deciding whether a natural parent should be afforded appointed counsel in adoption proceedings. In Holderness v. Holderness (1984), Ind.App., 471 N.E.2d 1157, this court did say:
Id. at 1159 (emphasis supplied).
Indiana undeniably recognizes the right to counsel in termination proceedings of the parent-child relationship. Keen v. Marion Cty. Dep't of Pub. Welfare (1988), Ind.App., 523 N.E.2d 452; Matter of Laney (1986), Ind.App., 489 N.E.2d 551. When a petition is filed for the voluntary termination of parental rights, Ind.Code 31-6-5-3(7)(1988) provides in pertinent part:
"For purposes of section 2 of this chapter, [voluntary termination] the parents must be advised that:
. . . . .
(7) they are entitled to representation by counsel, provided by the State if necessary, throughout any proceedings to terminate the parent-child relationship against their will...."
(Emphasis supplied).
When involuntary termination of parental rights is sought, this court has construed IC 31-6-5-3(7) and IC 31-6-7-2(b) to provide for appointment of counsel in such proceedings:
IC 31-6-7-2(b); see also Keen, supra; Matter of Laney, supra. While there is no express statutory provision requiring appointed counsel in adoption proceedings, an order granting a petition for adoption does indeed terminate a parent's rights:
"The natural parents of such adopted person, if living, shall after such adoption be relieved of all legal duties and obligations due from them to such person and shall be divested of all rights with respect to such person ..." Ind.Code 31-3-1-9(1988).
When two statutes relate to the same subject matter, they are in pari materia and our foremost concern is to construe them together in order to give effect to the legislature's true intent. Citizens Action Coalition of Indiana, Inc. v. NIPSCO (1985), Ind., 485 N.E.2d 610; Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212; Adult Group Properties, Ltd. v. Imler (1987), Ind.App., 505 N.E.2d 459, trans. denied; Frame v. South Bend Community School Corporation (1985), Ind.App., 480 N.E.2d 261, trans. denied; Sutherland, Statutes and Statutory Construction (1984). As evidenced by the statutory provisions quoted above, it is apparent that the legislature intended to afford a nonconsenting indigent parent with appointed counsel in actions contemplating a termination of their parental rights. See Laney, supra.
Once Forest received notice of the proceedings, he contested the adoption, claimed to be indigent, and requested the assistance of appointed counsel. The petition for adoption initiated by Dennis and Mary Ann clearly contemplated the termination of Forest's parental rights of Benjamin.
In construing the termination and the adoption statutes together as to the right to counsel of a non-consenting parent in an adoption proceeding that terminates a parent's rights, we must conclude the legislature impliedly intended that any proceeding that terminates a right so fundamental requires the right to counsel as contemplated by the termination statute. Such a right can not be washed away by a tide of indifference to legislative intent.
We therefore conclude that the trial court erred in denying Forest's request.
Our decision has an additional underpinning. Several jurisdictions have recognized the importance of appointed counsel under the Due Process Clause of U.S. Const. Amend. XIV when an indigent's parental status is sought to be terminated. See In re Adoption of Sotelo (1985), 130 Ill.App.3d 398, 85 Ill.Dec. 685, 474 N.E.2d 413; State v. Jamison (1968), 251 Or. 114, 444 P.2d 15; Interest of Friesz (1973), 190 Neb. 347, 208 N.W.2d 259; In re Adoption of R.I. (1973), 455...
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