Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (Private) - Birth Parents

In In re McClure, an Indiana appellate court extended the reach of Ind. Code § 31-35-1-12, which applies in state-initiated termination of parental rights matters, to private adoptions, stating


While there is no express statutory provision requiring appointed counsel in adoption proceedings, an order granting a petition for adoption does indeed terminate a parent's rights ... we must conclude the legislature impliedly intended that any proceeding that terminates a right so fundamental requires the right to counsel as contemplated by the termination statute. Such a right can not be washed away by a tide of indifference to legislative intent.


549 N.E.2d 392, 394 (Ind. App. 1990).  See also Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991) and In re Adoption of G.W.B., 776 N.E.2d 952, 954 (Ind. Ct. App. 2002) (reaffirming McClure).

Courts must also inform the parent of their right to an attorney and any waiver of the right to counsel must be made knowingly, intelligently, and voluntarily. See e.g.G.W.B., 776 N.E.2d at 954; see also Keen v. Marion Cty. Dep't of Pub. Welfare, 523 N.E.2d 452, 455 (Ind. Ct. App. 1988) (finding mother validly waived her right to counsel where she sought continuance to obtain her own attorney, having been dissatisfied with court appointed counsel; in granting the continuance, court "emphasized over and again the importance of counsel and the seriousness of her decision in the event she had to represent herself.").

Appointment of Counsel: categorical Qualified: no