                                                                                  FILED
                                                                            Mar 16 2017, 9:37 am

                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT
Ryan P. Dillon
Marita K. Webb
Dillon Legal Group, P.C.
Franklin, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                          March 16, 2017
C. J., A Minor,                                           Court of Appeals Case No.
                                                          41A01-1608-AD-2007
S. R.,
                                                          Appeal from the Johnson Superior
Appellant-Respondent,                                     Court
         v.                                               The Honorable Kevin Barton,
                                                          Judge
M. J.,                                                    Trial Court Cause No.
                                                          41D01-1408-AD-30
Appellee-Petitioner,



Riley, Judge.




Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017                  Page 1 of 16
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, S.R. (Mother), appeals the trial court’s decree of

      adoption of her biological child, C.J. (Child), by Appellee-Petitioner, M.J.

      (Stepmother).


[2]   We reverse and remand.


                                                     ISSUE
[3]   Mother raises four issues on appeal, one of which we find dispositive and which

      we restate as follows: Whether Mother knowingly and voluntarily waived her

      right to counsel at the adoption hearing, where the trial court failed to impress

      upon her the serious consequences she faced if she represented herself.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother and E.J. (Father) are the biological parents of the Child, born on

      September 8, 2009, in Franklin, Johnson County, Indiana. On September 10,

      2009, Father executed a paternity affidavit for the Child. At some point

      thereafter, a paternity action was commenced in the Johnson Circuit Court

      under Cause Number 41C01-1106-JP-00145 (the paternity court). On January

      11, 2012, the paternity court issued an order on custody, support, and parenting

      time. The paternity court awarded legal and physical custody of the Child to

      Father and ordered Mother to pay $25.00 per week in child support. Mother,

      who was suffering from a substance abuse addiction, was to receive supervised

      parenting time as agreed upon by the parties. Mother was also ordered to

      complete a ten-panel hair follicle drug test in order to increase her parenting
      Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 2 of 16
      time in accordance with the Indiana Parenting Time Guidelines. Mother,

      however, never successfully passed a drug screen.


[5]   Following the paternity court’s order, Mother initially participated in

      supervised parenting time several times per week at Father’s home. In 2012,

      Father and Stepmother began dating, and in the summer of 2012, Stepmother

      and her daughter from a prior relationship moved in with Father and the Child.

      At that point, Mother ceased exercising parenting time, although Mother did

      visit the Child once in December of 2012. Since that time, however, Mother

      has not seen the Child. On January 2, 2013, Father and Stepmother were

      married. Thereafter, Stepmother assumed the maternal role in the Child’s life

      and acted as a primary caretaker. From January of 2013 until December of

      2013, Father was deployed to Afghanistan. During that time, the paternity

      court appointed Stepmother as the Child’s temporary guardian, and Stepmother

      ensured that all of the Child’s needs were met.


[6]   On August 14, 2014, Stepmother filed a petition to adopt the Child in the

      Johnson Superior Court under Cause Number 41D01-1408-AD-30 (adoption

      court). In her petition, Stepmother alleged that Mother’s consent to the

      adoption was not required because Mother had not “for a period of at least one

      year, and without justifiable cause, communicated significantly with the [C]hild

      when able to do so” and because Mother had “abandoned or deserted the . . .

      [C]hild for at least six months immediately prior to the filing of [the adoption




      Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 3 of 16
      petition].” (Appellant’s App. Vol. II, p. 2). 1 Stepmother subsequently filed an

      amended adoption petition (on June 9, 2015), to additionally argue that

      Mother’s consent to the adoption was not required because, for a period of at

      least one year, Mother had failed to provide for the care and support of the

      Child in accordance with the paternity court’s support order. Along with

      Stepmother’s adoption petition, Father filed his consent to Stepmother’s

      adoption of the Child. At the time, Father and Stepmother were unaware of

      Mother’s whereabouts and hired an investigator to track her down. It was not

      until three months after Stepmother filed her petition that Mother was served

      with notice of such.


[7]   From September of 2013 until June of 2014, Mother was incarcerated. After

      she was released, Mother filed a motion with the paternity court for a

      modification of her parenting time with the Child. On October 15, 2014—prior

      to Mother receiving notice of the adoption petition—the paternity court held a

      hearing on Mother’s motion. On October 17, 2014, Mother filed a letter with

      the paternity court seeking joint custody of the Child. Six days later, she again

      filed correspondence with the paternity court, reiterating her request for

      assistance in being able to visit with the Child and requesting joint custody. On

      November 6, 2014, the paternity court issued an order, finding that it would be

      in the Child’s best interest for Mother to resume exercising parenting time “with




      1
        Ultimately, Stepmother did not pursue the abandonment argument as a basis for contending that Mother’s
      consent to the adoption was not required.

      Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017                    Page 4 of 16
      a twenty (20) week phase-in period.” (Appellant’s App. Vol. III, p. 89).

      Following the phase-in period, Mother was to have parenting time in

      accordance with the Indiana Parenting Time Guidelines.


[8]   In November of 2014, Mother was served with notice of Stepmother’s adoption

      petition, and on November 24, 2014, she filed her objection to the Child’s

      adoption by Stepmother. In response to Stepmother’s contention that Mother’s

      consent was not required for the adoption to proceed, Mother claimed that she

      had never abandoned the Child and further asserted that Father and

      Stepmother had denied her efforts to see or communicate with the Child. On

      December 23, 2014, Mother filed a motion to consolidate the pending case in

      the adoption court with the ongoing case in the paternity court. On January 21,

      2015, the paternity court transferred its case to the adoption court.


[9]   On April 7, 2015, Stepmother filed a home study with the adoption court in

      accordance with Indiana Code section 31-19-8-5. The home study was

      completed by Terrence Lovejoy (Lovejoy), a social worker with the Children’s

      Bureau, Inc., and included background checks into Stepmother’s criminal

      history and any involvement with the Department of Child Services (DCS).

      The background checks revealed Stepmother’s two prior convictions for driving

      while intoxicated, in 2009 and 2012, as well as arrests/citations in 2011 and

      2012 for contempt and driving while suspended, respectively. Stepmother has

      had no prior involvement with DCS. Nevertheless, during the home visit,

      Lovejoy was reassured that alcohol was no longer a problem in Stepmother’s

      life. Lovejoy reported that Stepmother has been

      Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 5 of 16
               the primary and sole maternal figure currently involved in the life
               of [the] five-year-old [Child]. This includes being his sole
               caregiver for nearly a year when his [F]ather was deployed in the
               military. [The Child] refers to [Stepmother] as being his mother
               and seems to genuinely see her as such.


       (Appellant’s App. Vol. II, p. 73). Ultimately, Lovejoy concluded that he

       “would support a recommendation to grant” Stepmother’s adoption petition

       “provided that [the Child] were to be deemed legally free for adoption.”

       (Appellant’s App. Vol. II, p. 73).


[10]   On June 25, 2015, the adoption court held a hearing on the issue of whether

       Mother’s consent was required for the adoption. At the beginning of the

       hearing, Mother informed the court that her attorney had withdrawn three

       months earlier due to her inability to afford him, and she requested that the

       court appoint her new counsel. The adoption court questioned Mother

       regarding her financial circumstances. Mother indicated that she works

       between forty and forty-five hours per week for a cleaning company, earning

       $10.00 per hour. In addition, Mother stated that she works about twenty-four

       hours each week for another company earning $7.50 per hour. Mother

       described that she had monthly expenses totaling $855. The adoption court

       determined that Mother had sufficient income to pay for an attorney and

       therefore had made a “voluntary choice” to proceed without the assistance of

       counsel. (Tr. Vol. II, p. 12).


[11]   Stepmother subsequently presented her case-in-chief. According to

       Stepmother’s testimony, Mother saw the Child on two occasions in 2012.

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 6 of 16
       Then, in 2013, Mother only once attempted to see the Child but cancelled the

       meeting due to a job interview. Stepmother further explained that for a portion

       of 2013, Mother was incarcerated, and during that time, Mother did not make

       any effort to communicate with the Child. As for 2014, Stepmother testified

       that Mother made two requests to see the Child—one of those being in

       November of 2014 after the petition for adoption had been filed. At that point,

       the paternity court had ordered the phase-in parenting time for Mother, but

       Stepmother testified that Mother never showed up for her scheduled time.

       Stepmother made it clear that she never interfered with Mother’s attempts to

       have parenting time. Father also testified during Stepmother’s case-in-chief.

       According to Father, between June 28, 2011, and June 23, 2015, Mother paid

       $2,757.60 in child support and was $2,417.40 in arrears. Mother did not cross-

       examine Stepmother or Father.


[12]   During Mother’s case-in-chief, she contradicted the testimony of Father and

       Stepmother. Mother indicated that, in 2012, she participated in parenting time

       with the Child on a regular basis at Father’s house until Stepmother moved in,

       at which time she was no longer permitted to see the Child. Mother testified

       that there were multiple occasions over the years where she was refused

       parenting time by Father and Stepmother—that they refused to answer their

       door and ignored her phone calls and text messages to them. According to

       Mother, the last time Father permitted her to see the Child was in December of

       2012, at which time Father ordered her to refrain from referring to herself as the

       Child’s mother in the Child’s presence because “[Stepmother] was his new


       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 7 of 16
       mom.” (Tr. Vol. II, p. 63). Mother stated that she continued to send text

       messages on a daily basis, begging to see the Child. Mother admitted that in

       2012 and 2013, she was suffering from a longstanding addiction to painkillers.

       By the time of the hearing, Mother claimed that she had been sober for two

       years.


[13]   After Mother very briefly testified about her attempts to see the Child, the

       adoption court asked Mother a substantial number of questions. During the

       adoption court’s examination, Stepmother raised the following objection:


                I’m going to say this, I want to say this very respectfully, but it
                appears that the [c]ourt is acting as an advocate for [Mother].
                Uh, she chose to not have any attorney in this matter and, um, I
                just feel that it, that it’s improper. It seems like the [c]ourt and,
                again, respectfully say this, that the [c]ourt is acting as an
                advocate for her and that’s what I would base my objection on
                this matter.


       (Tr. Vol. II, p. 72). The adoption court stated that it “respect[ed]” Stepmother’s

       objection and “discontinue[d] further examination.” (Tr. Vol. II, p. 72).

       Instead, the adoption court appointed counsel for Mother and continued the

       hearing.


[14]   On October 29, 2015, the adoption court resumed the hearing on the issue of

       Mother’s consent, with Mother appearing by appointed counsel. As the

       adoption court clarified at the beginning of the hearing, it was to be “a

       continuance of the June 25th hearing, not a new hearing, so [they were to] pick

       up where [they] left off.” (Tr. Vol. II, p. 73). Mother proceeded with her case-

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017        Page 8 of 16
       in-chief, once again testifying that throughout 2012, 2013, and 2014 (with the

       exception of when she was incarcerated), her attempts to see the Child were

       thwarted by Father and Stepmother.


[15]   On December 15, 2015, the adoption court issued its Order on Mother’s

       Consent. The adoption court found that Mother’s consent to the adoption of

       the Child by Stepmother was not required pursuant to Indiana Code section 31-

       19-9-8(a)(2)(A) because Mother had failed to communicate significantly with

       the Child for at least one year. In particular, the adoption court found “a lack

       of communication for the period from the visitation before Christmas of

       December[] 2012 through the date of filing of the [adoption petition] on August

       20, [sic] 2014.” (Appellant’s App. Vol. III, p. 21). The adoption court further

       found that Mother’s “testimony of daily efforts to obtain visitation [was]

       improbable, and that [Mother] did not seek visitation until after her release

       from incarceration when she was sober.” (Appellant’s App. Vol. III, p. 21). 2

       As to Stepmother’s alternative contention that Mother’s consent was not

       required based on a failure to provide support for the Child for more than one

       year, the adoption court determined that Stepmother had failed to meet her

       burden of proving that Mother was capable of paying support.




       2
         The adoption court found that Father and Stepmother began blocking Mother’s attempts to visit the Child
       in the summer of 2014, following Mother’s release from incarceration, because at that time, Stepmother had
       decided to pursue adoption. Nevertheless, the adoption court found such conduct to be “of no moment
       inasmuch as a period in excess of one year . . . as required under Indiana Code [section] 31-19-9-8(a)(2)(A)
       ha[d] been determined to exist.” (Appellant’s App. Vol. III, p. 22).

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017                        Page 9 of 16
[16]   On July 20, 2016, the adoption court conducted a hearing on Stepmother’s

       adoption petition as to the issue of the Child’s best interest. On August 8, 2016,

       the adoption court issued a Decree of Adoption, finding by clear and

       convincing evidence that it is in the Child’s best interest to be adopted by

       Stepmother. In granting Stepmother’s petition for adoption, the adoption court

       terminated Mother’s parental rights to the Child. The adoption court found it

       significant that the Child “identifies [Stepmother] as his mother. He regards

       [Stepmother’s] family as being the maternal family. [Mother] is unknown to

       him. [The Child] does not recognize [Mother] as his mother.” (Appellant’s

       App. Vol. III, p. 66). While the adoption court sympathized with Mother’s

       “desire to now establish the relationship with [the Child] that she had

       previously given up,” it declined to undermine the Child’s stability or to

       “endanger a healthy parent-child relationship in which the [C]hild has

       identified [Stepmother] as his mother.” (Appellant’s App. Vol. III, p. 70).

       Furthermore, the adoption court issued an order on the same day declaring that

       the paternity court’s November 6, 2014 parenting time order was entered

       without jurisdiction based on the fact that an adoption petition had been filed.


[17]   Mother now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[18]   Mother appeals the adoption court’s decree of adoption in favor of Stepmother.

       At the outset, we note that Stepmother has not filed an appellee’s brief with our

       court. It is well established that our court “will not undertake the burden of
       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 10 of 16
       developing arguments for the appellee.” In re Adoption of N.W.R., 971 N.E.2d

       110, 112 (Ind. Ct. App. 2012). Furthermore, we apply “a less stringent

       standard of review” and “may reverse the trial court if the appellant establishes

       prima facie error.” Id. at 113. “Prima facie error is defined as at first sight, on

       first appearance, or on the face of it.” Id.


[19]   Pursuant to Indiana Code section 31-19-11-1(a), the trial court shall grant an

       adoption petition if, in relevant part, the adoption is in the child’s best interest;

       the petitioner is sufficiently capable of rearing and supporting the child; and

       proper consent, if required, has been given. Following the entry of an adoption

       decree, our standard of review on appeal “is to consider the evidence most

       favorable to the petitioner and the reasonable inferences which can be drawn

       therefrom to determine whether sufficient evidence exists to sustain the trial

       court’s decision.” In re Adoption of S.O., 56 N.E.3d 77, 80 (Ind. Ct. App. 2016).

       Our court will not overturn the trial court’s decision regarding an adoption

       “unless the evidence at trial led to but one conclusion and the trial court

       reached an opposite conclusion.” Id. We do not reweigh evidence, and

       because we presume that the trial court’s decision is correct, the appellant bears

       the burden of overcoming that presumption. In re Adoption of H.N.P.G., 878

       N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied.


[20]   Additionally, in this case the adoption court entered findings of fact and

       conclusions of law pursuant to Indiana Trial Rule 52(A).

               Thus, we must first determine whether the evidence supports the
               findings and second, whether the findings support the judgment.
       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 11 of 16
               We will not set aside the findings or the judgment unless they are
               clearly erroneous. The trial court’s findings of fact are clearly
               erroneous if the record lacks any evidence or reasonable
               inferences to support them. A judgment is clearly erroneous
               when it is unsupported by the findings of fact and the conclusions
               relying on those findings.


       In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006) (internal

       citations omitted).


                                          II. Court-Appointed Counsel

[21]   Mother claims that the adoption court committed reversible error by failing to

       appoint her an attorney until after Stepmother had rested her case at the hearing

       on Mother’s consent. Due process safeguards preclude “state action that

       deprives a person of life, liberty, or property without a fair proceeding.” In re

       G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quoting In re C.G., 954 N.E.2d 910, 916

       (Ind. 2011)). As our courts have previously noted, a parent has a fundamental

       liberty interest in the care and custody of her child. Petition of McClure, 549

       N.E.2d 392, 395 (Ind. Ct. App. 1990). Thus, we have held it to be a violation

       of due process if a child is removed from “an indigent parent without affording

       that parent the right to assistance of court-appointed counsel.” Id.


[22]   Indiana’s law governing juvenile court procedures provides that “[a] parent is

       entitled to representation by counsel in proceedings to terminate the parent-

       child relationship.” Ind. Code § 31-32-2-5. Furthermore, Indiana Code section

       31-32-4-1(2) states that “[a] parent, in a proceeding to terminate the parent-child

       relationship” is “entitled to be represented by counsel.” More specifically, if

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 12 of 16
               (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 under [Indiana Code chapter 31-32-5];

               the juvenile court shall appoint counsel for the parent at the
               initial hearing or at any earlier time.


       I.C. § 31-32-4-3(a). The right to counsel in a termination proceeding may only

       be waived “if the parent does so knowingly and voluntarily.” I.C. § 31-32-5-5.


[23]   Because a biological parent’s rights are necessarily terminated by an adoption,

       we have previously held that “[t]he rights afforded by the involuntary

       termination statutes apply in adoption proceedings where the petitioners seek to

       adopt over the objections of one or both of the natural parents.” Taylor v. Scott,

       570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991), trans. denied; see I.C. § 31-19-15-

       1(a)(2) (providing that biological parents are divested of all rights to their child

       upon the child’s adoption). Thus, parents whose parental rights will be

       terminated in an adoption proceeding “have three rights: (1) ‘the right to be

       represented by counsel’; (2) ‘the right to have counsel provided if [they] could

       not afford private representation’; and (3) ‘the right to be informed of the two

       preceding rights.’” In re Adoption of G.W.B., 776 N.E.2d 952, 954 (Ind. Ct. App.

       2002) (alteration in original) (quoting Taylor, 570 N.E.2d at 1335).


[24]   Although the termination statute simply provides that a parent is entitled to

       appointed counsel in a termination proceeding, the case-law indicates that a

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 13 of 16
       parent’s indigency is a prerequisite to having the court appoint counsel.

       Compare I.C. § 31-32-4-3(a) with In re Adoption of G.W.B., 776 N.E.2d at 954. In

       this case, Mother requested the appointment of counsel at the beginning of the

       consent hearing on the basis that she could not afford an attorney. The

       adoption court, however, made an initial determination that Mother had

       sufficient income and did not qualify for appointed counsel. After Stepmother

       rested her case-in-chief, Mother was unsure how to proceed with the

       presentation of her own evidence. Ultimately, the adoption court engaged in a

       significant examination of Mother, to which Stepmother objected. Without

       commenting on Mother’s indigency, the adoption court—presumably in order

       to avoid the appearance that it was acting as Mother’s advocate—determined

       that she was entitled to appointed counsel at that point and recessed the

       hearing.


[25]   Although Mother did receive the benefit of counsel for her case-in-chief at the

       consent hearing and throughout the entirety of the subsequent hearing on the

       Child’s best interests, Mother essentially contends that, had she been

       represented during Stepmother’s case-in-chief at the consent hearing, her

       attorney could have explored certain inconsistencies in the testimony of Father

       and Stepmother through cross-examination, which might have impacted the

       adoption court’s decision regarding the necessity of Mother’s consent. See I.C.

       § 31-32-2-3(b)(1) (stipulating that in a termination proceeding, a parent is

       entitled to cross-examine witnesses). It is clear that the proceedings concerning

       Mother’s consent, including the time that Mother was not represented, “flowed


       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017   Page 14 of 16
       directly” into the adoption court’s ultimate decision to terminate Mother’s

       parental rights through adoption. In re G.P., 4 N.E.3d at 1169; see I.C. § 31-19-

       11-1(a)(1),(7) (requiring that adoption be in the child’s best interest and that

       proper consent be given before an adoption petition is granted).


[26]   The adoption court found that Mother had made a “voluntary choice” to

       proceed without the assistance of counsel. (Tr. Vol. II, p. 12). We disagree.

       Once Mother learned that she might be able to have court-appointed

       representation, she made it clear that she preferred to have the assistance of

       counsel rather than proceeding pro se. Despite its finding that Mother could

       afford an attorney, the adoption court, instead of offering an opportunity for

       Mother to secure a private attorney or encouraging her to do so, proceeded with

       the hearing on the basis that Mother had waived her right to counsel. As

       previously stated, a waiver of the right to counsel must be made “knowingly

       and voluntarily.” I.C. § 31-32-5-5. Here, “nothing on the record demonstrates

       that the [adoption] court did anything to impress upon [Mother] the serious

       consequences [s]he faced if [s]he represented [herself].” Taylor, 570 N.E.2d at

       1335. 3 Accordingly, because we find that Mother has established a prima facie

       case that she was deprived of an essential right in violation of due process, we

       must reverse the adoption court’s adoption decree. We remand for a new

       hearing on the issue of Mother’s consent, at which Mother should, absent a




       3
         However, we do note that, based on the fact that Mother had previously retained counsel, it appears that
       she was informed of (or at least had knowledge of) her right to counsel.

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017                      Page 15 of 16
       knowing and voluntary waiver of her rights, be afforded the right to retain

       counsel or, if the adoption court determines that Mother is indigent, to appoint

       counsel on her behalf. 4


                                                CONCLUSION
[27]   Based on the foregoing, we conclude that Mother’s due process rights were

       violated by the adoption court’s failure to, at the beginning of the consent

       hearing, either afford Mother with her right to counsel or otherwise ensure that

       Mother’s waiver of the right to counsel was knowing and voluntary.


[28]   Reversed and remanded.


[29]   Crone, J. and Altice, J. concur




       4
         Because we reverse on the basis that Mother was denied due process, we need not address Mother’s
       additional arguments that the adoption court erred in finding that her consent was not required; that the
       home study was stale by the time of the final adoption hearing; and that the adoption court erred in failing to
       consolidate the paternity and adoption cases.

       Court of Appeals of Indiana | Opinion 41A01-1608-AD-2007 | March 16, 2017                         Page 16 of 16
