In the Matter of A.A. (Minor Child) Child in Need of Services, C.A. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 19 2017, 9:32 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Special Assistant to the State Public Attorney General of Indiana Defender Abigail R. Recker Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of A.A. (Minor April 19, 2017 Child) Child in Need of Services, Court of Appeals Case No. 52A02-1611-JC-2684 C.A., Appeal from the Miami Circuit Appellant-Respondent, Court v. The Honorable Timothy P. Spahr, Judge Indiana Department of Child Trial Court Cause No. Services, 52C01-1603-JC-34

Appellee-Petitioner. Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017 Page 1 of 6

Case Summary [1] C.A. (“Mother”) appeals the adjudication of her daughter, A.A. (“Child”), as a

Child in Need of Services (“CHINS”). Mother raises two related issues, which

we consolidate and restate as whether Mother’s due process rights were violated

when the trial court allowed Mother’s counsel to orally withdraw at the fact-

finding hearing, with no notice, and conducted the hearing in Mother’s

absence. [2] We reverse and remand.

Facts and Procedural History [3] Shortly after Mother gave birth to Child, the Department of Child Services

(“DCS”) removed Child from Mother’s care. On March 22, 2016, DCS filed a

CHINS petition, alleging that Mother was in a violent relationship with M.R.,

and that the relationship posed a threat to Child. Mother was appointed a

public defender, and counsel entered an appearance on Mother’s behalf. [4] A fact-finding hearing was initially scheduled for May 18, 2016, but was

postponed several times due to continuances. The hearing was eventually

scheduled for August 17, 2016. On July 6, 2016, Mother made several pro se

filings, including a “Motion to Continue Pro Se” in which she alleged that her

appointed counsel was “not representing [her] properly,” kept allowing

continuances, and did not return phone calls. (App. at 100.) The trial court

entered an order striking Mother’s pro se filings, and a status hearing was set for

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August 3, 2016 regarding Mother’s dissatisfaction with counsel. Mother did

not attend the hearing, and Mother remained represented by counsel. [5] On August 17, 2016, the fact-finding hearing was held, and Mother was absent.

At the beginning of the hearing, the trial court asked Mother’s counsel about

contact between them, and counsel responded:

I’ve had no contact with [Mother] other than the one time that she was in Court. She failed to appear for her appointment, we’ve tried to call her on three phone lines, none of which have voicemail set up. One of them’s not accepting calls, at least, I sent her a letter after the last hearing indicating she if wished [sic] to discuss the case[,] she would need to set an appointment because her phone wasn’t set up. I’ve never had any . . . contact from (inaudible).

(Tr. at 4.) Counsel also confirmed that he sent the date of the fact-finding

hearing to Mother’s last-known address. The trial court inquired about DCS’s

contact with Mother, and then said it would proceed with the fact-finding

hearing. Mother’s counsel then orally moved to withdraw, and the trial court

granted the motion. DCS then presented evidence, after which the trial court

adjudicated Child a CHINS. [6] The trial court held a dispositional hearing on September 21, 2016, at which

Mother appeared pro se. Mother explained that she did not attend the status

hearing or the fact-finding hearing because, at those times, she had a body

attachment warrant in a separate custody case. At the conclusion of the

hearing, the trial court said that it was adopting DCS’s recommendations and

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ordering services. The trial court entered its order on October 28, 2016, Mother

was appointed a public defender, and this appeal ensued.

Discussion and Decision [7] Mother seeks reversal of the CHINS adjudication, contending that her due

process rights were violated when the trial court allowed her attorney to

withdraw at the start of the fact-finding hearing, without notice—which was

contrary to Trial Rule 3.1(H)1—and then conducted the hearing in her absence. [8] Parents at all stages of CHINS proceedings have due process protections, and

these protections are “vital” because every CHINS proceeding has the potential

to interfere with the rights of parents in the upbringing of their children. In re

G.P., 4 N.E.3d 1158, 1165 (Ind. 2014). “[T]he requirement of due process—

whether set as a minimum floor by the Due Process Clause of the Fourteenth

Amendment or established as something higher by legislative enactment”—

embodies a requirement of “fundamental fairness.” Id. at 1168. Due process

“requires ‘the opportunity to be heard at a meaningful time and in a meaningful

manner.’” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v.

Eldridge, 424 U.S. 319, 333 (1976)).

1 Indiana Trial Rule 3.1(H) provides, inter alia, that “[a]n attorney representing a party may file a motion to withdraw representation of the party upon a showing that the attorney has sent written notice of intent to withdraw to the party at least ten (10) days before filing a motion to withdraw representation.” The instant motion to withdraw, made orally with no notice, was plainly contrary to this rule.

Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017 Page 4 of 6 [9] The process due in a CHINS proceeding often turns on the balancing of three

Mathews factors: (1) the private interests affected by the proceeding; (2) the risk

of error created by the State’s chosen procedure; and (3) the countervailing

governmental interest supporting use of the challenged procedure. See id.

Mother declines to apply the Mathews factors. Instead, she directs us to In re

G.P., in which our supreme court noted that, “Mathews analysis aside, it is also

true that ‘if the State imparts a due process right, then it must give that right.’”

4 N.E.3d at 1166 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). That is,

denial of a statutory entitlement “would constitute a failure to afford [a] parent

the process to which the General Assembly says he or she is due.” Id. [10] Mother points out that parents in CHINS adjudication proceedings have several

statutory entitlements, including the right to cross-examine witnesses and the

right to introduce evidence. See Ind. Code § 31-32-2-3. Mother contends that,

given the circumstances of the fact-hearing, she was effectively deprived of these

State-imparted rights, and thereby denied due process. We agree. Although we

certainly do not condone Mother’s decision not to appear at the fact-finding

hearing, critically, Mother made that decision when she was still represented.

Had Mother known of her attorney’s intention to withdraw, Mother could have

made an informed decision about whether to attend the fact-finding hearing and

exercise her statutory rights as a pro se litigant—or potentially seek new counsel.

Yet, Mother had no notice of counsel’s intentions, and was effectively

prevented from exercising her statutory rights when the trial court conducted

the hearing in her absence. In this regard, the CHINS proceeding was rendered

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fundamentally unfair,2 and Mother was denied due process. Cf. D.A. v. Monroe

Cty. Dep’t of Child Servs., 869 N.E.2d 501, 510-12 (Ind. Ct. App. 2007) (engaging

in a three-factor Mathews analysis and concluding that a parent was denied due

process under similar circumstances). We therefore reverse the CHINS

adjudication and remand for a proper fact-finding hearing.

Conclusion [11] Mother’s due process rights were violated when the trial court allowed Mother’s

counsel to withdraw, without notice, and conducted the fact-finding hearing in

Mother’s absence. [12] Reversed and remanded.

Vaidik, C.J., and Robb, J., concur.

2 We are not persuaded by the State’s argument that Mother invited error of this nature because she expressed dissatisfaction with counsel, by filing the pro se motion that was ultimately stricken, or because she failed to attend the fact-finding hearing when, to Mother’s knowledge, she was represented by counsel.

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