In re the Adoption of K.C.: C.C. v. S.H. and L.H. (mem. dec.) ( 2016 )

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.
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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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