Indiana Supreme Court declares right to counsel for parents in abuse/neglect cases

Like most states, Indiana guarantees counsel to parents in abuse/neglect cases (called “Child in Need of Services” or “CHINS”) and termination of parental rights proceedings. Ind. Code §§ 31-34-4-6 (indigent parent accused of abuse/neglect has right to appointed counsel upon request); 31-35-1-12(7) (right to appointed counsel “throughout any proceedings to terminate the parent-child relationship against the will of the parents”); 31-32-4-1 (“[t]he following persons are entitled to be represented by counsel: … (2) [a] parent, in a proceeding to terminate the parent-child relationship …”); 31-32-4-3 (“(a) If: (1) a parent in proceedings to terminate the parent-child relationship does not have an attorney who may represent the parent without a conflict of interest; and (2) the parent has not lawfully waived the parent’s right to counsel … the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time. (b) The court may appoint counsel to represent any parent in any other proceeding.”).

The Indiana Supreme Court clarified that parents have a statutory right to counsel in abuse/neglect cases and that the failure to appoint is reversible per se. G.P. v. Indiana Dept of Child Servs., 4 N.E.3d 1158 (Ind. 2014).  In G.P., a parent waived her statutory right to counsel initially in a CHINS proceeding but then asked for a lawyer at a later stage of the CHINS proceeding (review hearing).  The judge said he would appoint counsel for her, but then never did so.  Eventually the state filed to terminate her parental rights, and although she was appointed counsel at that point, her rights were terminated. The Indiana Court of Appeals said it was unsure whether the mother had a statutory right to counsel (due to conflicting language between one statute saying appointment is discretionary and another saying it’s mandatory), but that even if she did, the error was harmless.

The Indiana Supreme Court reversed.  First, it ruled that “to the extent any case law holds that a trial court has discretion to appoint counsel for an indigent parent in a CHINS proceeding, those cases are not correct on that point. Section 31-34-4-6 is an explicit provision of just such a statutory right, though subject to its own internal qualifications, and is consistent with the operation of the rest of the statutory scheme.”  

Second, it held that the mother had not permanently waived her CHINS right to counsel by waiving it initially: 

Nor have we ever held that a litigant who has been told that they would receive appointed counsel must continually re-request said counsel at each and everyhearing where an attorney is not provided to her. The very fact that this notion might occur to lawyers and judges looking at her case, but not occur to J.A. at her hearings, is at least somewhat indicative of why she needed the lawyer in the first place. We therefore think it inappropriate to reward J.A.’s change of course by still holding her to the standards of an attorney at subsequent hearings when counsel was never actually appointed. She is not, at that point, a pro se litigant: she is a client standing alone in a courtroom where her parenting skills and her child’s care and custody are all being challenged, and everyone else but her either is a lawyer or has a lawyer.

Third, the court created a bright-line rule on reversibility: 

In a number of contexts, Indiana courts have applied a bright-line rule as to the right to counsel—reversing convictions or other judgments when that right is denied … In none of these circumstances did the denial of the right to counsel require review for its prejudicial impact on the litigant—the denial itself was a prejudice requiring a reversal … We think this bright-line rule is the right approach to take here, as well.

The court noted the kinds of things the attorney could have done (drawing heavily from the transfer petition), then said, “Any of these actions could have changed the tenor and direction of the CHINS process and perhaps prevented the TPR proceeding altogether, and it therefore also seems inappropriate to claim that this error did not result in harm because the outcome of the TPR proceedings would have remained the same. In many ways, the harm was the TPR proceedings.”

Note: Although the appellate court in G.P. seemed to construe the question as whether mother was “denied her due process rights when the trial court failed to appoint her counsel in the CHINS case”, referring to the “Due Process clause of the U.S. Constitution (suggesting it was addressing only the Fourteenth Amendment and not the state constitution), the Indiana Supreme Court leaned on deprivation of a statutory right to counsel.  Thus, the Court seemingly did not rule on whether the mother had a due process right to counsel.

Listen to the oral argument in G.P. v. Indiana Dept of Child Servs., 4 N.E.3d 1158 (Ind. 2014).