A TTORNEYS FOR A PPELLANT A TTORNEY FOR A PPELLEE

Joel Schumm Robert Henke Indianapol is, Indiana Indianapolis, Indiana

Daniel B. Schuetz Franklin, Indiana

____________________________________________________________________ __________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 03S05

- 1004

- JV

- 218

I N THE M ATTER OF THE T ERMINATION OF THE P ARENT

- C HILD R ELATIONSHIP OF I.B., M INOR C HILD , AND M.L., C HILD ‟ S M OTHER , Appellant (Respondent b e low)
,

v.

I NDIA NA D EPARTMENT OF C HILD S ERVICES , Appellee (Petitoner below)

.

_________________________________ Appeal from the Bartholomew Circuit Court, No. 03C01

- 0809

- JT

- 2077

The Honorable Stephen R. Heimann, Judge

_________________________________ On Petition to Tra nsfer from the Indiana Court of Appeals, No. 03A05

- 0912

- JV

- 676

_________________________________

September 21 , 2010
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 cou n sel for an indigent parent who appeal s the termination of his or her parental rights

– but only where the parent himself or herself authorizes the appeal.2 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 newb orn Child from
Mother after C hild tested positive for amphetamines. At the dispositional hearing on October 9, 2007, Mother a dmitted that Child was a Child i n 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 d e cree, the court ordered Mother to complete drug s creens at the State‟s request.

In July and August, 2007, Mother complied with the requested drug screens and had ne gative results. However, after August, 2007, Mother did n ot keep to the scheduled visits, indivi dual 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; Gran dmother r e mained the primary caregiver for Child. During this time, Mother would be away from the home for long periods of time and was frequently i n toxicated.

In February, 2008, a case manager for t he 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. Therea fter, Mother missed nume rous supervised visits and individual counseling se s sions, 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 recommend ation, Mother had no contact with any service p roviders (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 term ination proceeding, the court appointed counsel to represent her. Before the start of the termin a-3

tion hearing, counsel moved to withdraw; he explained that he h ad never met Mother, had had no contact with her, and did not know how to locate her. The court declined counsel‟s request to
wit h draw.

In February, 2009, the juvenile court held a termination hearing; counsel participated in the hearing. Grandmother te stified that she notified Mother of the hea r ing, but Mother indicated that she did not want anything to do with the State. Grandmother further testified that she had no
address or tel e phone number to reach Mother. Based on the evidence presented at the h earing, on July 28, 2009, the court issued an order termina ting 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 no t know whet her she wanted to file an appeal. Counsel stated that h e 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.” (A ppellee‟s App. 111.) 1

The juvenile court denied t he moti on 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. I nd. 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 pr o vides that “[a] parent is entitled to representation by

1 The pub lic defender contract indicates that “[t]he Judge and Attorney agree that the Attorney must represent all persons in legal proceedings to the extent that, if necessary, a motion to correct error[] must be filed and argued and a praecipe for the record for the purposes of an appeal must be filed.” (Appe llant‟s Br. 8 .)4

counsel in proceedings to terminate the parent

- child relationship.” Indiana Code section 31

- 32

- 4

- 1 provides that “[t]he following pe r sons 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 fu r ther explains that :

(a) If: (1) a parent in proceedings to terminate the parent

- child relationship does not have an a t torney 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 pr ovided if th e parent is indigent; and (3) the rig ht to be informed of the two pre ceding rights. Ta ylor 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 co mmencement an d 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 d e finitions for the wo rd “pro ceeding.” 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 procedu ral means for seeking redress from a tribunal or agency. 3. An act or s tep that is part of a larger action. 4. The business conducted by a court or other official body; a hearing.

2 The Court of Appeals also relied on Baker v. Marion County Office of Family & Children , 810 N.E.2d 1035, 1038 (Ind. 2004) (noting that the “Code does not provide for appointment of cou nsel t o seek post

judgment relief”). In re I.B. and M.L. , 922 N.E.2d at 67

. As the Appellant points out, Baker did not a ddress the appointment of counsel on direct appeal in a termination of parental rights case; the focus in Baker was an ineffective as sistanc e of counsel claim that frequently inv olves a collateral proceeding.5

1324 (9th ed. 2009). In our view, a “proceeding” is not limited to the trial court stage. Accor ding 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 pr o ceeding does not limit the appointment of counsel to the trial proceeding but rather applies t o the entire process, including through the direct appeal proceeding. See, e.g. , Thom pson 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 disso lution procee dings), trans. d e nied , 831 N.E.2d 740 (Ind. 2005).

Other jurisdictions with similar statutory language have found a right to appointed appe llate counsel. See In re Adoption of K.L.P.
, 7 63 N.E.2d 741, 753 (Ill. 2002 ) (finding that an ind igent parent had a statutory right to counsel on appeal in termination of parental rights cases); In re Jacqueline H. , 577 P.2d 683, 687 (Cal. 1978) (concluding “that the Legislature could not have intended to withhold from an indigent parent the right to an ef fective appeal, and, ther e fore, the services of appellate counsel in [termination] proceedings”); In re Chambers , 152 N.W.2d 818,
820

- 21 (Iowa 1967) (holding that an indigent parent in exercising her statutory right of a p peal from a decree severing her par ental rights was entitled to assistance of counsel at public e xpense). The Iowa S u preme Court stated that:

We see no reason why the appointment of co unsel for plaintiff under [the statute] should be construed to terminate when the hearing before the juve nile 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 re quire the services of counsel.

I d. 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 pr ovided 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 (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, inclu d ing appeal.6 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 ci v il case in tort or contract, an attorney cannot proceed without a client‟s instr ucti on. In the words of
the United States Court of Appeals for the Second Circuit: “[a]n attorney‟ s only ethical oblig ation 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 320, 323 (2d Cir. 1987) ( citing Model Code of Prof ‟l Responsibility, EC7

- 7, EC7

- 8, EC7

- 9 (as amended, 1980) ) , cert. denied , 484 U.S. 1020 (1988)

. But sho uld that be the case in termination cases where so much is at stake for both pa r ent and
child?

Our Rules of Professional Conduct provide general guidance on this question. Indiana Professional Conduct Rule 1.2 describes the proper dec i sion

- making relatio nship between the lawyer and client. Koval v. Simon Telelect, Inc. , 693 N.E.2d 1299, 1303 n.6 (Ind. 1998). Dec isions relating to the objectives of the representation belong to the client. See Ind. Prof ‟l Co n duct
R. 1.2(a). Specifically, Indiana Profess ional Conduct Rule 1.2(a) 3 requires lawyers to abide by the client‟s decision as to the objectives of representation. In re Roberts , 727 N.E.2d 705, 709 (Ind. 2000). The lawyer is also required to consult with the client as to the means by which the
clie nt‟s objectives are to be pursued. Ind. Prof ‟l Conduct R. 1.2(a). Professional Conduct Rule 1.3 provides “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The lawyer also has the pr o fessional obligation to maintai n reasonable communication between the lawyer and the client in order to participate effectively in the represent a tion. Id. at

3 “[A] lawyer shall abide by a client‟s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to b e pursued.” In d. Prof ‟l Conduct R. 1.2 (a).7

R. 1.4 cmts. 2

- 5. After all, the lawyer is expected to consult with the client about the means to employ in order to accomplish the client‟s objectives. I d. at R. 1.4(a)(2). And Rule 1.4(b) r equires the lawyer to “explain a matter to the extent reasonably necessary to permit the client to
make i n formed decisions regarding the representation.” See In re Roberts , 727 N.E.2d at 70 9.

A rule of not proceeding absent instructions is consistent with decisions in other jurisdi ctions (though each is subject to unique statutory regimes) that have considered the i s sue in family
law matters. In re Alma B. , 26 Cal. Rptr. 2d 592 (Cal. Ct. App. 1994), addressed whether an a ttorney could file an appeal from an order identifying adoption as the permanent plan for the mother‟s children without the client‟s consent. The court held that co n sent could not be imputed
from the mere fact that the a ttorn ey had a stated belief that the client o b jected to the termination of parental rights decision, at least where there is contradictory co n duct. Id. at 595. The court
found three actions that belied the claim by counsel that the pa r ent wanted custody of the minors: (1) the parent‟s failure to comply with a drug rehabilitation pr o gram; (2) her failure to appear at the selection and implementation hearing; and (3) the ultimate abandonment of her children.
Id. ; 4 s ee also In re Adoption/Guardianship of D arjal C. , 992 A.2d 503 , 517 (Md. Ct. Spec. App. 2010) (holding that the mother in a termination of parental rights proceeding had to make the u ltimate decision whether to appeal
, where the mother‟s attorney filed an appeal on her behalf
wi thout her express authorization and mother had no knowledge that an appeal was filed on her behalf); Seder v. Seder , 841 A

. 2d 1074, 1076 (Pa. Super. Ct. 2004) (finding that a mother‟s counsel could not appeal an order awarding father child support without at least tacit a p proval from the mother); Brode v. Brode , 298 S.E.2d 443, 4 45 (S.C. 1982) (“The ultimate ele c tion to bring an appeal is to be made by the client, not the atto r ney. The rule is well settled . . . .”); In re
Welfare of Parzino , 587 P.2d 201, 202 (Wash. Ct. A pp. 1978) (c ourt

- appointed attorney could not appeal order terminating parental rights where mother had been absent since shortly after
child was born ).

4 After In re Alma B. , the court began a practice, upon receiving a notice of appeal signed by counsel, of issuing an order questioning whether the parent had authorized the appeal and invited a response. See In re Steven H. , 103 Cal. Rptr. 2d 649, 653 (Cal. Ct. App. 2001); Suzanne J. v. Superior Court , 54 Cal. Rptr. 2d 25, 26

- 27 (Cal. Ct. App. 1996); Guillermo G. v. Superior Court , 39 Cal. Rptr. 2d 748, 751

- 52 (Cal. Ct. App. 1995). In 2007, this practice was discontinued when the court concluded that it should pr e sume an attorney‟s authority to represent his or her purported client. But the court made clear that “the attorney signing a notice of appeal . . . i m pliedly represent[s] . . . that his or her client has authorized t he appeal.” In re Helen W. , 57 Cal. Rptr. 3d 914, 920 (Cal. Ct. App. 2007).8

“ There is little that can be as detrimental to a child‟s sound development as uncertainty
over wheth er he is to remain in his current „home,‟ under the care of his parents or foster parents, especially when such uncertainty is prolonged.” Baker v. Marion County Office of Family &
Children , 810 N.E.2d 1035, 1040 (Ind. 2004) ( quoting Lehman v. Lycoming Co unty Children‟s Servs. Agency , 458 U.S. 502, 513

- 14 (1982)). When considering the best interest of the child, permanency is a central consideration. In re Termination of the Parent

- Child Relationship of
G.Y. and R.Y. , 904 N.E.2d 1257 , 1265 (Ind. 2009). The State has a significant parens patriae interest in protecting the welfare of the children in volved ; it does not gain when it separates children from the custody of fit parents. Santosky v. Kramer , 455 U.S. 745, 766

- 67 (1982).

“ The purpose of terminat ing parental rights is not to punish parents, but to protect the children. ” Egly v. Blac k ford County Dep‟t of Pub. Welfare , 592 N.E.2d 1232, 1234 (Ind. 1992). The State has a compelling interest in protecting the welfare of the child by intervening in ce rtain situ ations, In re E.P. and J.P. , 653 N.E.2d 1026 , 1032 (Ind. Ct. App. 1995), but delay in the adjudic ation of a case can impose significant costs upon the functions of government as well as an i ntan g ible cost to the life of the child i n volved.

An appeal of a decision to terminate parental rights, by its very nature, causes delay and prolongs the process of uncertainty for a child. To sanction an appeal as a matter of course would not further the objective of bringing permanency to the child throug h the prompt resol ution of termination proceedings. As such, the policy objective of permanency is consonant with the lawyer‟s ethical obligations.

B

If a parent is present at the termination hearing and contests the termination of parental rights order , the parent is entitled to appeal the termination order with the assistance of court

appointed counsel as discussed in part I, supra

– although the parent can certainly waive the right to appeal. When the parent does not appear at the termination of pare ntal rights trial, is not present when the termination of parental rights order is issued, or has not had contact with cou nsel, the parent‟s trial lawyer has an obligation to contact the client and inform the client of the9

result of the termination proceed ing. See Ind. Prof ‟l Conduct R. 1.3 and 1.4. At this point, the

a t torney can receive instructions with respect to an appeal. See id. at 1.2.

In the event that the lawyer does not know the whereabouts of the parent, the lawyer must use due diligence to locate the client during the time period between the entry of the termination of parental rights order and the time that the notice of appeal is due. 5 If a lawyer is unable to l ocate the client despite due diligence or if the lawyer cannot get clear instr uctions from the client with respect to an appeal, the lawyer should not file a notice of appeal. See Ind. Prof ‟l Cond uct R. 1.3 cmt. 4 (“ [I] f a lawyer has handled a judicial or administrative proceeding that produced a
result adverse to the client and th e lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of a ppeal . . . .”). Should the parent resurface and seek to pursue an appeal after the period for fili ng a notice of appeal has closed, our trial rules may provide a remedy in certain situations. See, e.g. , In re Adoption of T.L.W. and T.S.W. , 835 N.E.2d 598, 601 (Ind. Ct. App. 2005); In re Adoption
of I.K.E.W. , 724 N.E.2d 245 , 250 (Ind. Ct. App. 2000)

. 6

C

In this case, Mother failed to appear at the termination of parental rights hearing and the hearing regarding the appointment of appellate counsel following the decision to terminate her parental rights. Her whereabouts were unknown. She had not been in contact with her lawyer or the State for many months before it filed the termination action. Due to Mother‟s own ina c tion, her counsel could not effectively or ethically represent that she wanted to file an appeal. “[A] child‟s right to a stable home cannot be put on hold interminably because a parent is absent from the courtroom and has failed to contact his or her attorney.” In re Dependency of C.R.B. , 814
P.2d 1197 , 1202 (Wash. Ct. App. 1991) (citation omitted) . Her lawyer asked the court to a p po int

5 “A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment.” Ind. App

. R

. 9(A)(1).

6 For example, under Trial Rule 60(B)(8), “the party asking for relief must show that its failure to act or the result was not merely due to an omission involving mistake, surprise, or excusable neglect. Rather, some extraordinary circumstances must be affirmat ively demonstrated.” In re Adoption of I.K.E.W. , 724 N.E.2d at 250 (quoting Weppler v. Stansbury , 694 N.E.2d 1173, 1176 (Ind. Ct. App. 1998)).10

appellate counsel to appeal the decision. W e find t hat our rules of professional conduct, gui dance from other jurisdictions, and the principal policy considerations animating termination of parental rights adjudications all di c tate that, on the facts of this case, the lawyer had no basis to file an appeal and the trial court was co rrect not to appoint appellate counsel for that purpose.

Conclusion

Parents have a statutory right to appellate counsel to appeal an order terminating their p arental rights . This right to appeal can be waived. And it is improper for a parent‟s trial lawyer, after the lawyer has exercised due diligence to determine the parent‟s wishes with respect to an appeal, to pursue an appeal without the parent‟s authorization.

The ju dgment of the juvenile court denying appointment of appellate counsel to represent Mother in an appeal of the involuntary termination of the parent

- child relationship order is a ffirmed.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.