Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Danielle Sheff

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

INDIANA DEPARTMENT OF 

CHILD SERVICES

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis

ATTORNEY FOR APPELLEE:

CHILD ADVOCATES, INC.

Toby Gill

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 2 of 15

In Re the Termination of the 

Parent-Child Relationship of:

D.C. (Minor Child)

and

J.R. (Mother), 

Appellant-Respondent, 

v. 

Indiana Department of Child 

Services,

Appellee-Petitioner,

and

Child Advocates, Inc., 

Appellee-Guardian Ad Litem. 

December 27, 2018

Court of Appeals Case No.

18A-JT-1250 

Appeal from the Marion Superior 

Court

The Honorable Gary Chavers, 

Judge Pro Tem 

The Honorable Larry Bradley, 

Magistrate

Trial Court Cause No.

49D09-1709-JT-818 

Tavitas, Judge. 

Case Summary

[1] J.R. (“Mother”) appeals the termination of her parental rights to D.C. 

(“Child”). We reverse and remand for further proceedings. 

Issue

[2] On appeal, Mother raises three issues, of which we find the first to be 

dispositive. We restate the dispositive issue as whether the trial court erred in 

failing to disqualify counsel for Child Advocates from his representation in the 
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termination proceedings where counsel previously represented Mother in a 

2013 child in need of services (“CHINS”) matter.

Facts

[3] Mother is the biological parent of the Child. In 2013, after Mother tested 

positive for illegal substance use, the Marion County Office of Family and 

Children (“DCS”) opened a CHINS action (the “2013 CHINS action”) as to 

the Child and another child of Mother’s, M. At the time, Mother was pregnant 

with twins. The 2013 CHINS action ended with a guardianship after Mother 

agreed to allow her brother, B.B., to serve as guardian for the Child and M. 

Attorney Ryan Gardner represented Mother in the 2013 CHINS action and 

prepared guardianship filings on behalf of B.B. 

[4] On May 31, 2016, the Henry County Office of Family and Children initiated a 

CHINS action (“the 2016 CHINS action”) as to the Child and M. due to 

“allegations of abandonment and educational and medical neglect” by Mother.1

 

Appellant’s App. Vol. II p. 15. The Child and M. were “ordered detained and 

placed outside [Mother’s] home” at the June 1, 2016, initial hearing. Id. On 

December 22, 2016, the trial court determined that the Child was a CHINS

 

1 On July 14, 2016, the 2016 CHINS action was transferred to Marion County, where the Child resided.
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after Mother admitted that she lacked housing and financial means to provide 

for the Child.

2

[5] On January 20, 2017, the trial court entered a dispositional order, in which it 

adopted DCS’ recommendation and ordered Mother to participate in various 

services. In August 2017, citing Mother’s lack of progress, DCS and the 

guardian ad litem (“GAL”), Child Advocates, recommended that the 

permanency plan for the Child should be changed from reunification to 

adoption. 

[6] On December 2, 2017, DCS filed a petition for termination of Mother’s 

parental rights to the Child. The trial court conducted the evidentiary factfinding hearing on DCS’ petition on April 23, 2018. DCS appeared by counsel, 

and Attorney Gardner appeared as counsel for Child Advocates. During a 

break in DCS’ presentation of its case-in-chief, Attorney Gardner disclosed his 

previous representation of Mother in the 2013 CHINS action as follows: 

MR. GARDNER: Your Honor before DCS calls the next 

witness I wanted to . . . . I have a bit of candor toward the 

tribunal, so I wanted to make sure the court was aware. I don’t 

believe that there’s a conflict. I do not remember this case but 

apparently as I look through DCS’ exhibits. If you’ll remember 

this case was initially set before hand [sic], Jennifer Balhon, from 

our office was covering it once it got continued out it fell on my 

docket, but it looks like from the 2013 case I’m the one who 

 

2 According to the order of termination, M. “is still involved in a CHINS proceeding” and the permanency 

plan as to M. “is other than reunification.” App. Vol. II p. 16.
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handled the Guardianship or at least drafted it before it was two 

months before I left the Child Advocates, two months before I 

left I prepared the Guardianship for Mom’s brother and was the 

Public Defender appointed to represent Mom, so I was on the 

case for a couple of months and I left I have had no involvement 

with this particular case obviously. I don’t believe that my 

limited involvement with that case creates a conflict where I 

would not be able to continue on this case, but I did want to let 

everyone know that I was apparently the public defender in 2013 

who was appointed to this case and I’m just realizing that. 

THE COURT: That was the previous case? 

MR. GARDNER: Yeah, the 2013. 

THE COURT: Okay. 

[Counsel for DCS]: We have no objection. 

THE COURT: You just did the Guardianship paperwork? You 

really had nothing to do with . . . .

MR. GARDNER: I did [sic] really have anything to do with 

most of that case. As I read through the documents that were 

shown . . . . I left the Public Defender’s office in June 2013. It 

looks [sic] I did the . . . I was appointed the 18th of May in 2013 

so I was on there very briefly the fact finding rolled around and it 

looked like the plan was a Guardianship with her brother so I 

went ahead and prepared the paperwork for that but that was the 

extent of my involvement. I did want to let the court know that 

at least that I was and let the party know that I was appointed as 

Mother’s PD for that brief period of time. 
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[Counsel for Mother]: And Mom believes that is a conflict based 

on at that [sic] in her words he was trying to help her out and 

now he’s trying to take the kids away from her in her words, so 

she believes that is a conflict of interest. 

MR. GARDNER: I would not [find a conflict of interest,] your 

Honor though it was two separate cases five years apart um I had 

very limited contact with Mom except for to prepare the 

paperwork for the Guardianship for her brother and after that 

actually after I prepared the paperwork I left the public defender’s 

office. Mr. Hayden took over my docket and actually did the 

Guardianship hearing and since then I’ve had zero contact or 

involvement with the children or with mother, so I don’t believe 

that context is recent enough or consistent enough to create the 

type of conflict that would require that I would not be able to 

cover this case, but I will defer to the courts, Judge. 

THE COURT: Oh well you’ll be on the case. . . . .

Tr. Vol. II pp. 30-32.

[7] The evidentiary hearing proceeded. DCS called witnesses and presented 

evidence, and Child Advocates agreed that adoption was in the Child’s best 

interest. In an order, dated January 17, 2018, the trial court granted DCS’ 

petition to terminate Mother’s parental rights to the Child. 

[8] On August 17, 2018, Mother submitted her brief of appellant. On September 

17, 2018, Child Advocates filed a verified motion to reverse and remand and 

moved, in the alternative, for a new briefing schedule. Child Advocates argued 

that “remand is appropriate and ‘necessary for the administration of justice.’”

See Verified Motion to Remand, p. 2. Child Advocates further stated:
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If Child Advocates, Inc. were to file its brief, it would concede 

that the circumstances of this case create an appearance of 

impropriety, and that once it was determined that [Attorney]

Gardner had represented Mother in a previous child in need of 

services case, even without any memory of mother or 

recollection of the facts of her previous case, because mother did 

not waive the potential conflict, he should have been disqualified 

as counsel for Child Advocates, Inc.

Id. at 3.3

[9] On October 4, 2018, DCS filed its brief of appellee, wherein DCS “agree[d] 

with Mother’s statement of the facts relating to the attorney conflict of interest 

issue” and concurred with Child Advocates’ concession of reversible error.4

 

Appellee’s Br. p. 5.

Analysis

[10] Mother argues that the trial court abused its discretion when it denied her 

motion to disqualify Attorney Gardner from representing Child Advocates in 

the termination proceedings. We agree. Child Advocates concedes reversible 

error on the resulting conflict of interest issue, and DCS concurs.

 

3 On November 27, 2018, Child Advocates filed a notice of intent to rest on verified motion to remand and to 

forgo filing a response to Mother’s brief of appellant. We accepted Child Advocates’ notice on October 2, 

2018.

4 DCS also argued that, “[t]o the extent this Court does not find Mother’s issue dispositive regarding the 

conflict of interest . . . the evidence otherwise clearly and convincingly supports termination of Mother’s 

parental rights. Mother does not challenge the court’s findings of fact. The unchallenged findings—which 

must be accepted as correct—demonstrate the trial court’s termination order is not clearly erroneous.” 

Appellee’s Br. p. 13.
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[11] The Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. In re 

K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225, 

1230 (Ind. 2013). “[A] parent's interest in the upbringing of [his or her] child is 

‘perhaps the oldest of the fundamental liberty interests recognized by th[e] 

[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 

(2000)).

[12] “When the State seeks to terminate the parent-child relationship, it must do so 

in a manner that meets the requirements of due process.” In re G.P., 4 N.E.3d 

1158, 1165 (Ind. 2014) (quotations omitted). “Likewise, due process

protections at all stages of CHINS proceedings are vital because every CHINS

proceeding has the potential to interfere with the rights of parents in the 

upbringing of their children.” Id. (quotation omitted). Our supreme court has, 

thus, urged exercise of the utmost caution in “interfering with the makeup of a 

family and entering a legal world that could end up in a separate proceeding 

with parental rights being terminated.” In re K.D. & K. S., S.S. v. Ind. Dep’t of 

Child Servs., 962 N.E.2d 1249, 1259 (Ind. 2012).

[13] It is well-settled that a trial court may disqualify an attorney for a violation of 

the Indiana Rules of Professional Conduct that arises from the attorney’s 

representation before the court. XYZ, D.O. v. Sykes, 20 N.E.3d 582, 585 (Ind. 

Ct. App. 2014). This authority to disqualify “has been described as necessary to 

prevent ‘insult and gross violations of decorum . . . .’” Id. We review a trial 

court’s decision regarding disqualification for an abuse of discretion. Id. “An 
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abuse of discretion occurs when the trial court’s decision is clearly against the 

logic and effect of the facts and circumstances before it or it has misinterpreted 

the law.” Id. 

[14] Indiana Professional Conduct Rule 1.9(a) states, “A lawyer who has formerly 

represented a client in a matter shall not thereafter represent another person in 

the same or a substantially related matter in which that person’s interests are 

materially adverse to the interests of the former client unless the former client 

gives informed consent, confirmed in writing.”

[15] In Sykes, the plaintiffs sued a doctor and his employer-hospital for medical 

malpractice. The doctor subsequently moved to disqualify the law firm that 

represented the plaintiffs because that law firm employed an attorney who had 

previously represented the doctor in multiple medical malpractice cases. 

Although the imputed disqualification issue in Sykes arose in the context of a 

law firm, the panel’s analysis is nonetheless instructive here.

[16] The Sykes court analyzed the issue under the following three-part test employed 

by the Seventh Circuit Court of Appeals:

First, we must determine whether a substantial relationship exists 

between the subject matter of the prior and present 

representations. If we conclude a substantial relationship does 

exist, we must next ascertain whether the presumption of shared 

confidences with respect to the prior representation has been 

rebutted. If we conclude this presumption has not been rebutted, 

we must then determine whether the presumption of shared 

confidences has been rebutted with respect to the present 
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representation. Failure to rebut this presumption would also 

make disqualification proper.

Sykes, 20 N.E.3d at 586 (quoting Gerald v. Turnock Plumbing, Heating, & Cooling, 

LLC, 768 N.E.2d 498, 502 (Ind. Ct. App. 2002)). 

[17] As to whether the prior and present representations were substantially related 

for purposes of Rule 1.9, the Sykes panel determined that (1) the attorney’s prior 

representations of the doctor involved defending the doctor against claims of 

medical malpractice; and (2) the present representation – in which the 

attorney’s new employer, the law firm, was representing the plaintiffs –

involved one claim of medical malpractice and various related claims arising 

from the hospital’s alleged failure to investigate the doctor’s previous 

malpractice cases. The Sykes panel, thus, found “[t]he issues in the prior and 

present cases are undoubtedly closely interwoven . . . [and] there is a substantial 

risk that confidential factual information as would normally have been obtained 

in the prior representations would materially advance the Plaintiffs’ position in 

the present case.” Id. at 587. Accordingly, on the first prong of the test, the 

Sykes panel concluded that the prior and present cases were substantially 

related.

[18] Next, the Sykes panel considered the rebuttable presumption that the attorney 

had actually received confidential information from the doctor during the prior 

representation. As the Sykes panel stated, “we must determine whether the 

attorney whose change of employment created the disqualification issue was 

actually privy to any confidential information [her] prior law firm received from 
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the party now seeking disqualification of [her] present firm.” Id. at 588 (quoting 

Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)).

[19] Citing comment three to Rule 1.9, for the proposition that “[a] conclusion as to 

whether a lawyer possesses such confidential information ‘may be based on the 

nature of the services the lawyer provided the former client and information 

that would in ordinary practice be learned by a lawyer providing such 

services,’” the Sykes panel found that the presumption of shared confidences in 

the prior representations was not rebutted. Prof. Cond. R. 1.9, cmt. 3. The 

panel reasoned:

It is undisputed that [the attorney] was the primary and, at times, 

only attorney representing Doctor in each of those prior medical 

malpractice cases. As such, [the attorney] was privy to much 

confidential information, including but not limited to Doctor’s 

personal thoughts and mental impressions regarding the facts and 

circumstances and the strengths and weaknesses of those cases.

Id. at 588.

[20] As to the final prong, whether “‘there is a rebuttable presumption that the 

knowledge possessed by one attorney in a law firm is shared with the other 

attorneys in the firm,’” the Sykes panel concluded, pursuant to Rule 1.10(c), that 

no effort by the attorney’s new employer, the law firm, to screen or “insulate 

against any flow of confidential information from [the attorney] to any member 

of her present law firm,” would suffice because “imputed disqualification is per 

se and screening is not possible where the personally disqualified lawyer had 

‘primary responsibility’ for the prior ‘matter that causes the disqualification.’” 
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Id. (quoting Gerald, 768 N.E.2d at 505); id. (quoting Prof. Cond. R. 1.10(c)). 

The Sykes panel reasoned that, because the attorney served as the doctor’s 

primary, and often only, attorney in the previous six medical malpractice cases, 

the law firm could not merely screen the attorney to avoid imputation of the 

conflict to the law firm.

[21] In rendering its judgment, the Sykes panel cautioned, “we must be cognizant 

that ‘public trust in the integrity of the judicial process requires that any serious 

doubt be resolved in favor of disqualification’” and found that the doctor’s 

claim raised “serious doubt” about the law firm’s involvement in the litigation. 

Id. at 589. Accordingly, the Sykes panel concluded that the trial court abused its 

discretion in denying the doctor’s motion to disqualify his former attorney’s

new employer-law firm from the proceedings. The Sykes panel reversed the trial 

court’s judgment and remanded for further proceedings. We feel similarly 

constrained here.

[22] Here, as to whether the prior and present representations are substantially 

related for purposes of Rule 1.9, the 2013 CHINS action and the 2016 CHINS 

action each arose from DCS’ claims that the Child was a CHINS and that 

Mother was unable to meet the Child’s basic needs. There can be no 

reasonable dispute regarding this prong. The prior and present CHINS matters

were substantially related.

[23] Nor can there be any doubt as to the second prong -- the rebuttable presumption 

that Attorney Gardner actually received confidential information from Mother
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during the prior representation. By Attorney Gardner’s admission, he served as 

Mother’s primary counsel for approximately two months of the 2013 CHINS 

action; his recollection is that his role was limited to preparing guardianship 

materials for Mother’s brother, B.B. Attorney Gardner’s role was more 

involved, however, as Mother contends, without challenge from Child 

Advocates or DCS:

In fact, Mr. Gardner did appear at a pre-trial hearing in the 2013 

CHINS [action] as [Mother]’s counsel unrelated to the 

guardianship . . . and he also represented [Mother] at the CHINS 

fact-finding hearing. [ ] At the subsequent guardianship hearing, 

Mr. Gardner appeared as [Mother]’s brother’s private counsel.

Appellant’s Br. p. 25. Mother argues further, and we agree, that:

In the ordinary course of such representation, the attorney would 

necessarily learn information about [Mother]’s relationship with, 

and acts or omissions with regard to, [the Child]. The only 

logical conclusion that could be reached from Mr. Gardner’s 

representation of [Mother] in the CHINS proceedings is that 

confidential information had been disclosed in the course of his 

representation of [Mother].

Id. at 26. In recognition of the practical aspects of representing a parent in 

CHINS proceedings, with the not-insignificant potential for termination of

parental rights, we find that the presumption that Attorney Gardner actually 

received confidential information from Mother during the prior representation

has not been rebutted here.
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[24] As to the final prong of the Gerald test, whether “there is a rebuttable 

presumption that the knowledge possessed by one attorney in a law firm is 

shared with the other attorneys in the firm,” we need only look to Child 

Advocates’ concession below:

. . . [T]he circumstances of this case create an appearance of 

impropriety, and that once it was determined that [Attorney] 

Gardner had represented Mother in a previous child in need of 

services case, even without any memory of mother or 

recollection of the facts of her previous case, because mother did 

not waive the potential conflict, [Attorney Gardner] should have 

been disqualified as counsel for Child Advocates, Inc.

Verified Motion to Remand, p. 3.

[25] For the foregoing reasons, we find that the trial court abused its discretion in 

denying Mother’s motion to disqualify Attorney Gardner from representing 

Child Advocates, an adverse party to Mother, in the 2016 CHINS action, where 

Attorney Gardner previously represented Mother in the 2013 CHINS action.

Conclusion

[26] Given Attorney Gardner’s previous representation of Mother in a substantially 

related matter, the trial court abused its discretion in denying Mother’s motion 

to disqualify Attorney Gardner from his subsequent representation of an

adverse party, Child Advocates, in an action involving Mother. We reverse the 

trial court’s order terminating Mother’s parental rights to the Child and remand 

for further proceedings consistent with this opinion.
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[27] Reversed and remanded for further proceedings.

[28] Brown, J., and Altice, J., concur.