In re the Adoption of K.C.: C.C. v. S.H. and L.H. (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jul 12 2016, 8:51 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Cara Schaefer Wieneke Michael Cheerva Special Assistant to the Shelby County Emswiller, Williams, Noland & Public Defender Clarke PC Brooklyn, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Adoption of K.C.: July 12, 2016

C.C., Court of Appeals Case No. 73A04-1509-AD-1482 Appellant-Respondent, Appeal from the Shelby Circuit v. Court The Honorable John A. Westhafer, S.H. and L.H., Senior Judge Trial Court Cause No. Appellees-Petitioners 73C01-1501-AD-1

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 73A04-1509-AD-1482 | July 12, 2016 Page 1 of 5

Case Summary [1] A biological parent is entitled to appointed counsel in an adoption proceeding

where the adoption would result in the involuntary termination of that parent’s

parental rights. Because the biological mother in this case contested the

adoption of her child, she is entitled to appointed counsel if she is indigent. We

therefore reverse and remand this case for the trial court to determine whether

the biological mother is indigent and, if so, to appoint counsel to represent her

at a new adoption hearing.

Facts and Procedural History [2] C.C. (“Mother”) is the biological mother of K.C., who was born November 22,

2008. In August 2010, Mother was arrested for, among other things, having an

illegal drug lab in her home while K.C. was present. Mother pled guilty and

was sentenced to eight years, with four years to be served in the Indiana

Department of Correction and four years suspended to probation. While she

was in prison, Mother agreed to allow her sister, Cassie, to be K.C.’s guardian.

The guardianship was filed in Madison Circuit Court. See Appellant’s Supp.

App. p. 3. Cassie continued to be K.C.’s guardian when Mother was released

from prison to a work-release facility. [3] Cassie later learned that she had terminal cancer and requested co-guardians for

K.C. K.C. was placed with L.H. and S.H. (“the adoptive parents”) on July 31,

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2014, and the Madison Circuit Court appointed the adoptive parents co-

guardians with Cassie on September 25, 2014. Cassie died in November 2014. [4] Mother was released from work release in late January 2015. On January 27,

2015, the adoptive parents filed a petition to adopt K.C. in Shelby Circuit

Court. The adoptive parents alleged that Mother’s consent to the adoption was

not required under Indiana Code section 31-19-9-8 because Mother knowingly

failed to provide for the care and support of K.C. for at least one year when she

was able to do so. Appellant’s App. p. 11. Mother, pro se, filed a handwritten

motion in which she contested the adoption and claimed that she did not have

any money to hire a lawyer. Id. at 24. [5] In the meantime, Mother requested parenting time with K.C. in the

guardianship case, and a hearing was held in Madison Circuit Court in March

2015. Near the end of the hearing, Mother asked the trial court to appoint her

counsel. Ex. 8, p. 70. The trial court instructed Mother to fill out a form.

Mother completed the form and was appointed counsel. Appellant’s Supp.

App. p. 8. The court continued the matter to August 2015. [6] But before this hearing could be held, the Shelby Circuit Court held a hearing in

the adoption case on August 26, 2015. This was the first (and only) hearing in

the adoption case. Both Mother and K.C.’s biological father appeared pro se.

At the beginning of the hearing, Mother asked the trial court to appoint her

counsel. Tr. p. 4. The trial court responded: “There are legal organizations

that might represent you, but [I’m] not accustomed to appointing counsel in an

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adoption case.” Id. The court then proceeded with the hearing and found that

Mother’s consent to the adoption was not required because she knowingly

failed to provide for the care and support of K.C. for at least one year when she

was able to do so. Appellant’s App. p. 46. The court terminated Mother’s and

the biological father’s parental rights and entered a decree of adoption of K.C.

in favor of the adoptive parents. Id. at 48. [7] Mother now appeals.

Discussion and Decision [8] Mother raises two issues on appeal, one of which we find dispositive: whether

the trial court erred in denying her request for appointed counsel without first

determining whether she was indigent. Indiana Code section 31-32-2-5

provides that a parent “is entitled to representation” in proceedings to terminate

parental rights. An adoption proceeding is an indirect method of terminating

parental rights. See Ind. Code § 31-19-15-1(a) (noting that “the parent-child

relationship is terminated after the adoption unless the parent-child relationship

was terminated by an earlier court action . . . .”). Indeed, this Court has held

that a parent’s right to counsel in Section 31-32-2-5 applies to adoption

proceedings where the adoption would result in the involuntary termination of

the parental rights of one or both of the natural parents. In re Adoption of K.W.,

21 N.E.3d 96, 99 (Ind. Ct. App. 2014) (citing Taylor v. Scott, 570 N.E.2d 1333

(Ind. Ct. App. 1991), trans. denied). Accordingly, contrary to the trial court’s

understanding of the law, if Mother is indigent, then she is entitled to appointed

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counsel. See In re G.P., 4 N.E.3d 1158, 1167 (Ind. 2014) (acknowledging that

the denial of the right to counsel in such cases requires reversal; a showing of

prejudice is not required). [9] Based on the record before us, it is likely that Mother is indigent. Indeed, after

Mother filed her notice of appeal in this case, the Shelby Circuit Court found

that Mother was eligible for court-appointed appellate counsel and referred her

case to the public defender’s office. We therefore reverse and remand this case

for the trial court to determine whether Mother is indigent and, if so, to appoint

counsel to represent her at a new adoption hearing. [10] Reversed and remanded.

Barnes, J., and Mathias, J., concur.

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