MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        Apr 24 2019, 10:09 am

court except for the purpose of establishing                                          CLERK
                                                                                  Indiana Supreme Court
the defense of res judicata, collateral                                              Court of Appeals
                                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 24, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of K.G. & C.G. (Minor                                     18A-JT-2621
Children)                                                 Appeal from the Spencer Circuit
                                                          Court
and                                                       The Honorable Lucy Goffinet,
                                                          Temporary Judge
Kr.G. (Father),
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          74C01-1807-JT-193
        v.                                                74C01-1807-JT-194

Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019                    Page 1 of 7
      Bradford, Judge.



                                             Case Summary
[1]   K.G. and C.G. (collectively, “the Children”) were twice removed from their

      parents’ care following instances of domestic violence between Ka.G.

      (“Mother”) and Kr.G. (“Father”) (collectively, “Parents”). The Children were

      eventually determined to be children in need of services (“CHINS”) and Father

      was ordered to complete certain services.1 Father, however, failed to

      successfully do so and the Department of Child Services (“DCS”) petitioned to

      terminate Father’s parental rights to the Children. Father appeared pro se at the

      fact-finding hearing after rejecting court-appointed counsel. Father appeals the

      termination of his parental rights to the Children, arguing that the juvenile court

      denied him due process by denying him the right to counsel. We affirm.



                              Facts and Procedural History
[2]   DCS first became involved with the Children and Parents after receiving a

      report that on March 30, 2015, Parents engaged in an episode of domestic

      violence during which K.G. was injured when he was hit by a door, Father’s

      hand was cut, and Mother’s face was injured. Parents were arrested and the




      1
        Mother has voluntarily relinquished her parental rights in the Children and does not participate in this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019                      Page 2 of 7
      Children were removed from their care. The case was closed in January of

      2016, with Father being named the Children’s primary caregiver.


[3]   DCS again became involved with the family after receiving a report that on

      March 17, 2016, Parents “were engaged in domestic violence and there was

      alcohol involved and [Mother] was injured and sent to the hospital and [Father]

      had fled the scene with the [C]hildren in his care.” Tr. p. 69. Soon thereafter,

      Father was arrested and the Children were removed from his care.


[4]   On March 21, 2016, DCS filed petitions alleging that the Children were CHINS

      due to Parents engaging in domestic violence in front of the Children and

      Father being arrested. The juvenile court issued an order adjudicating the

      Children to be CHINS on June 10, 2016. Three days later, the juvenile court

      ordered Father to complete certain services.


[5]   Approximately twenty-five months later, on July 24, 2018, DCS petitioned to

      terminate Father’s parental rights to the Children. The juvenile court

      conducted an initial hearing on August 13, 2018, during which it informed

      Father that he had a right to counsel and that he could either (1) hire an

      attorney, (2) request a court-appointed attorney, or (3) choose to proceed

      without an attorney. Father indicated that he understood this right, rejected a

      court-appointed attorney, and stated that he intended to hire an attorney.

      Father again indicated that he understood that he had the right to an attorney

      during an August 27, 2018 status hearing, during which he also asked questions

      seemingly clarifying his responsibilities if he were to proceed without counsel.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019   Page 3 of 7
[6]   The juvenile court conducted a fact-finding hearing on October 1, 2018. At the

      outset of this hearing, the juvenile court noted that Father appeared pro se and

      questioned Father about whether he was ready to proceed. Father answered

      affirmatively, saying “We can proceed.” Tr. p. 30. Father then participated in

      the fact-finding hearing, testifying on his own behalf and cross-examining

      DCS’s witnesses. At the conclusion of the hearing, the juvenile court issued an

      order granting DCS’s petitions to terminate Father’s parental rights to the

      Children.



                                 Discussion and Decision
[7]   At the outset, we note that in challenging the termination of his parental rights,

      Father does not challenge the juvenile court’s findings or conclusions thereon.

      Father’s sole contention is that he was denied the right to assistance of counsel

      during the fact-finding hearing.


              Due process protections bar state action that deprives a person of
              life, liberty, or property without a fair proceeding. It is
              unequivocal that the termination of a parent-child relationship by
              the State constitutes the deprivation of an important interest
              warranting deference and protection, and therefore when the
              State seeks to terminate the parent-child relationship, it must do
              so in a manner that meets the requirements of due process.


      In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (internal quotations omitted).

      Indiana Code sections 31-32-4-1 and 31-32-2-5 provide that a parent is entitled

      to be represented by counsel in proceedings to terminate the parent-child

      relationship. Indiana Code section 31-32-4-3 further provides that the juvenile
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019   Page 4 of 7
      court “shall appoint counsel for the parent at the initial hearing or at any earlier

      time” if the parent “does not have an attorney who may represent [him]

      without a conflict of interest” and “has not lawfully waived [his] right to

      counsel.” A parent lawfully waives his right to counsel if he does so

      “knowingly and voluntarily.” Ind. Code § 31-32-5-5.


[8]   Father’s actions in this case demonstrate that he knowingly and voluntarily

      waived his right to counsel. During the initial hearing, the following exchange

      occurred with regard to Father’s right to counsel:


              [The Court]: Sir, you are entitled to be represented by an attorney
              with regards to these matters. You may hire your own attorney
              to represent you or the Court will appoint counsel to represent
              you in this (sic) proceedings or if you wish, you may proceed
              without counsel.… Do you intend to hire your own attorney sir?

              [Father]:     No, Your Honor. I would like to have the same
              attorney that I had on the other cause numbers in the other
              CHINS matters. He has been – Walter Hagedorn has been
              sending me information on this – on these proceedings today. I
              would –

              [The Court]: Sir, not to interrupt you but Mr. Hagedorn has filed
              a Motion to Withdraw from your matters and so he has asked
              not to be appointed on these cases. Are you asking for court
              appointed counsel sir?

              [Father]:         No, I am not. I will obtain my own counsel.

              [The Court]: Okay. I’ll show that [Father] is going to hire his
              own attorney to represent him in this matter.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019   Page 5 of 7
      Tr. pp. 14–15. During a subsequent status hearing, the juvenile court informed

      Father that the next step was a fact-finding hearing and that “You absolutely, if

      you’re going to have an attorney, need to have one by this date.” Tr. p. 22.

      Father indicated that he understood, saying “Okay.” Tr. p. 22. Father further

      clarified that “Everything else is pretty much then on me as far as getting ahold

      of witnesses and stuff like that.” Tr. p. 23. The juvenile court indicated “That’s

      correct.” Tr. p. 23. Father appeared pro se at the October 1, 2018 fact-finding

      hearing. When the juvenile court inquired into whether Father was prepared to

      proceed with the fact-finding hearing, Father responded “Yes” and “We can

      proceed.” Tr. p. 30. Father then participated in the fact-finding hearing,

      testifying on his own behalf and cross-examining DCS’s witnesses.


[9]   Although Father claims that he took no affirmative action to forego his right to

      counsel, his actions prove otherwise. Father was informed by the juvenile court

      that he had a right to counsel and that he could either hire his own counsel,

      request court-appointed counsel, or proceed without counsel. At his initial

      hearing, Father explicitly rejected court-appointed counsel and indicated that he

      would hire counsel. He subsequently acted in a manner consistent with a

      decision to represent himself rather than hiring counsel. Further, nothing in the

      record suggests that Father communicated any desire for the court to appoint

      counsel after his explicit rejection of court-appointed counsel. Father argues

      that the juvenile court should have taken further action to verify his waiver of

      counsel prior to the beginning of his final hearing. While this might have been




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019   Page 6 of 7
       the better practice, we do not believe this was necessary given Father’s waiver

       of counsel at his initial hearing.


[10]   The judgment of the trial court is affirmed.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2621 | April 24, 2019   Page 7 of 7
