                                                                           Mar 10 2015, 8:56 am



      ATTORNEYS FOR APPELLANT
      Donald W. Francis, Jr.
      Michelle B. Domer
      Francis Berry Domer
      Bloomington, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Termination                           March 10, 2015
      of the Parent-Child Relationship                           Court of Appeals Case No.
      of M.N., A Minor Child, and                                53A01-1410-JT-462
      M.C., Her Father                                           Appeal from the Monroe Circuit
                                                                 Court
      L.N. and Heartland Adoption
                                                                 The Honorable Stephen R. Galvin,
      Agency,                                                    Judge
      Appellants-Petitioners                                     Cause No. 53C07-1404-JT-214

              v.

      M.C.,
      Appellee-Respondent



      Mathias, Judge.

[1]   L.N. (“Mother”) and the Heartland Adoption Agency (collectively “the

      Appellants”) appeal the Monroe Circuit Court’s order dismissing the Heartland

      Adoption Agency’s petition to terminate M.C.’s parental rights.

      Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015                    Page 1 of 11
[2]   We reverse and remand for proceedings consistent with this opinion.


                                     Facts and Procedural History

[3]   M.N. was born on October 1, 2009. M.C. is M.N.’s biological father and

      established his paternity to M.N. M.C. has paid child support intermittently

      since M.N.’s birth and has had minimal, sporadic contact with the child.

[4]   Four-year-old M.N. is autistic and non-verbal. She communicates with her

      mother through sign language and her body language. M.N. exhibits anxiety

      and struggles with social interactions and sensory issues. L.N. (“Mother”) has

      established a rigid and predictable schedule for M.N., which lessens M.N.’s

      anxiety and helps her cope with daily life.

[5]   M.N. receives Supplemental Security Income (“SSI”) because she is a disabled

      child. Her SSI payment is reduced if Mother’s income increases. M.C.’s

      intermittent child support payments also reduce M.N.’s SSI payment in an

      amount greater than the child support amount. M.C.’s infrequent child support

      payments also result in burdensome paperwork that Mother must complete and

      submit to government agencies in a short period of time so that M.N. continues

      to receive her SSI payment.




      Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015   Page 2 of 11
[6]   At Mother’s request, on April 16, 2014, the Heartland Adoption Agency, a

      licensed child placement agency, filed a petition to terminate M.C.’s parent-

      child relationship with M.N.1 The petition alleged M.C.

               has abandoned or deserted said child for at least six (6) months prior to
               the filing of this Petition, and he has for a period of at least one year,
               failed, without justifiable cause, to significantly communicate with the
               minor child or to provide support for the minor child’s health, welfare
               or care. Further, Father is unfit.

      Appellant’s App. p. 4.


[7]   On May 22, 2014, M.C. filed a voluntary relinquishment of his parent-child

      relationship to M.N. M.C. alleged that it was in M.N.’s best interests to

      terminate their parent-child relationship. On that same date, the trial court

      appointed a guardian ad litem (“GAL”) for M.N. The GAL concluded that

      terminating M.C.’s rights to M.N. was in her best interests because M.C. “is not

      committed to being involved and getting to know his daughter’s special needs.”

      Id. at 13.


[8]   The trial court held a hearing on the petition on July 24, 2014. The GAL,

      Mother, and M.C. testified that terminating M.C.’s rights was in M.N.’s best




      1
       The petition names Mother as the petitioner, “by Heartland Adoption Agency.” In its order dismissing the
      petition, the trial court observed that Mother did not have statutory authority to file the petition. The trial
      court therefore “presume[d] that Heartland Adoption Agency is the petitioner in this cause.” Appellant’s
      App. p. 16.



      Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015                            Page 3 of 11
       interests, that M.C. is not involved in M.N.’s care, he does not exercise

       parenting time, and he does not consistently pay his child support.2

[9]    The trial court questioned counsel concerning whether the petition to terminate

       M.C.’s parent-child relationship with M.N. was permitted under Indiana Code

       section 31-35-1-4. The trial court also expressed concern that public policy

       might prevent the court from granting the petition. Therefore, the trial court

       took the matter under advisement.


[10]   On October 2, 2014, the trial court issued findings of fact and conclusions

       thereon dismissing the petition to terminate M.C.’s parental rights. The trial

       court concluded that to file a petition to terminate a parent’s rights, the licensed

       child placing agency must be acting within the scope of its statutorily defined

       duties. “Nothing in the enabling statutes would allow a LCPA to file a petition

       to terminate the rights of one parent while maintaining the rights of the other

       parent when there is no issue of child placement, supervision, or adoption.” Id.

       at 17.

                Heartland Adoption Agency is not providing child welfare services to
                [M.N.] or family. It is not seeking to further an adoption or child
                placement by filing the petition to terminate [M.C.’s] parental rights.
                Rather, Heartland Adoption Agency is selling a service. It has filed a
                petition to terminate parental rights for a fee, no more and no less.




       2
        M.C. had paid $165 total in 2014 on the date of the July 24, 2014 hearing. His court-ordered child support
       obligation is $155 per week. Tr. pp. 21-22.



       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015                        Page 4 of 11
               Clearly, Heartland Adoption Agency is acting outside the scope of its
               statutory authorization as an LCPA.
       Id.


[11]   The trial court also noted that the attorneys who own Heartland Adoption

       Agency are also Mother’s attorneys and concluded that the “interrelationship

       creates a serious potential of a conflict of interest in this case.” Id. Specifically,

       the trial court observed that “there is a significant risk that the duty that Mr.

       Francis and Ms. Domer owe to their client, [Mother], may conflict with their

       financial interest in Heartland Adoption Agency and with their duty to act in

       the best interests of [M.N.] as the others of Heartland Adoption Agency.” Id. at

       18.


[12]   Mother and Heartland Adoption Agency appeal the trial court’s dismissal of

       Heartland Adoption Agency’s petition to terminate M.C.’s parental rights to

       M.N. M.C. did not file an Appellee’s brief.

                                   I. Indiana Code section 31-35-1-4

[13]   A parent’s constitutional right to raise his or her child may be terminated when

       the individual is unable or unwilling to fulfill his or her responsibility as a

       parent. In re B.D.J., 728 N.E.2d 195, 199-200 (Ind. Ct. App. 2000). “Because the

       ultimate purpose of the law is to protect the child, the parent-child relationship

       will give way when it is no longer in the child’s interest to maintain this

       relationship.” Id. at 200.




       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015        Page 5 of 11
[14]   Indiana Code section 31-35-1-4 governs a petition to voluntarily terminate a

       parent-child relationship at the parent’s request and provides:

               (a) If requested by the parents:
                        (1) the local office; or
                        (2) a licensed child placing agency;
               may sign and file a verified petition with the juvenile or probate court
               for the voluntary termination of the parent-child relationship.
               (b) The petition must:
                        (1) be entitled “In the Matter of the Termination of the Parent-
                        Child Relationship of __________, a child, and __________, the
                        child's parent (or parents)”; and
                        (2) allege that:
                                 (A) the parents are the child’s natural or adoptive
                                 parents;
                                 (B) the parents, including the alleged or adjudicated
                                 father if the child was born out of wedlock:
                                          (i) knowingly and voluntarily consent to the
                                          termination of the parent-child relationship; or
                                          (ii) are not required to consent to the termination
                                          of the parent-child relationship under section 6(c)
                                          of this chapter;
                                 (C) termination is in the child’s best interest; and
                                 (D) the petitioner has developed a satisfactory plan of
                                 care and treatment for the child.

[15]   Heartland Adoption Agency is a “child placing agency”, which

               for purposes of IC 31-27, means a person that provides child welfare
               services to children and families, including: (1) home studies,
               investigation, and recommendation of families for the purpose of
               placing, arranging, or causing the placement of children for adoption,
               foster care, or residential care; and (2) supervision of those placements.




       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015              Page 6 of 11
       Ind. Code § 31-9-2-17.5. Indiana Code article 31-27, and specifically chapter 31-

       27-6, imposes licensing requirements and regulations on child placing agencies.

[16]   The trial court dismissed the Appellants’ petition after concluding that under

       Indiana Code section 31-35-1-4, the Heartland Adoption Agency is not

       authorized to file a petition to terminate parental rights “when there is no issue

       of child placement, supervision, or adoption.” Appellant’s App. p. 17. The

       Appellants argue that the trial court ignored the plain language of the statute in

       reaching its conclusion.


[17]   The interpretation of a statute is a pure question of law and is reviewed under a

       de novo standard. See In re Marriage of Davis and Summers, 1 N.E.3d 184, 187

       (Ind. Ct. App. 2013). “‘When a statute is clear and unambiguous, we need not

       apply any rules of construction other than to require that words and phrases be

       taken in their plain, ordinary, and usual sense. Clear and unambiguous statutes

       leave no room for judicial construction.’” In re Paternity of H.H., 879 N.E.2d

       1175, 1177 (Ind. Ct. App. 2008) (quoting City of Carmel v. Steele, 865 N.E.2d

       612, 618 (Ind. 2007)).


[18]   Indiana Code section 31-35-1-4 does not restrict a licensed child placing

       agency’s reasons for filing a petition to voluntarily terminate parental rights.

       The statute plainly and unambiguously states that a licensed child placing

       agency “may sign and file a verified petition with the juvenile or probate court

       for the voluntary termination of the parent-child relationship” at the parents’

       request. I.C. § 31-35-1-4.


       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015   Page 7 of 11
[19]   Here, as required by the plain language of Indiana Code section 31-35-1-4,

       Mother retained Heartland Adoption Agency, a licensed child placing agency,

       to file a petition to voluntarily terminate M.C.’s parental rights to M.N.

       Although the petition alleged that M.C.’s consent to the termination of the

       parent-child relationship was not required because he had abandoned M.N.,

       M.C. later agreed to voluntarily relinquish his parent-child relationship with

       M.N.3


[20]   This case presents a very unique set of circumstances. M.C. is not present in

       M.N.’s life but does occasionally pay his court-ordered child support. M.C.’s

       occasional financial support negatively affects the amount of M.N.’s SSI

       payment, and Mother must complete additional “burdensome” paperwork to

       resume and maintain M.N.’s SSI payment. Mother, as M.N.’s only caregiver,

       would rather forego any child support from M.C. in order to facilitate and

       protect M.N.’s SSI payment.


[21]   Heartland Adoption Agency, as a licensed child placing agency, is providing

       “child welfare services” to M.N. and Mother by assisting them with

       maintaining M.N.’s SSI disability payments.4 See Ind. Code §§ 31-9-2-17.5,



       3
        Importantly, and as required by Indiana Code section 31-35-1-6, M.C. appeared in open court and
       consented to the voluntary termination of his parental rights. See also Youngblood v. Jefferson County Div. of
       Family and Children, 838 N.E.2d 1164, 1169 (Ind. Ct. App. 2005) (stating that “when a parent executes a
       written consent to the voluntary termination of her [or his] parental rights and appears in open court to
       acknowledge her [or his] consent to the termination, the consent will be deemed valid”).
       4
        Pertinent to the facts presented in this appeal, one of the several purposes of a child welfare program is
       “[p]roviding services targeted to the assistance of children who are developmentally or physically disabled
       and their families, for the purposes of prevention of potential abuse, neglect, or abandonment of those


       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015                              Page 8 of 11
       19.5 (stating that a child placing agency is “a person that provides child welfare

       services to children and families” and “child welfare services” are services

       “provided under a child welfare program”). Without M.N.’s disability SSI

       payment, we may reasonably infer that Mother would struggle to provide for

       M.N.’s special needs.


[22]   For all of these reasons, we conclude that Heartland Adoption Agency’s

       petition to terminate M.C.’s parental rights to M.N. at Mother’s request met the

       statutory requirements of Indiana Code section 31-35-1-4, and the trial court

       erred when it concluded that Heartland Adoption Agency acted outside the

       scope of its statutory authorization as a licensed child placing agency when it

       filed the petition to terminate M.C.’s parental rights.


                                            II. Conflict of Interest

[23]   Next, the Appellants challenge the trial court’s conclusion that “there is a

       significant risk that the duty” Mother’s attorneys owed to her “may conflict

       with their financial interests in Heartland Adoption Agency and with their duty

       to act in the best interests of M.N. as the owners of Heartland Adoption

       Agency.” See Appellant’s App. p. 18. Heartland Adoption Agency’s owners

       have appeared as counsel of record for both Mother and the adoption agency.




       children, and enabling the children to receive adequate family support and preparation to become self-
       supporting to the extent feasible[.]” Ind. Code § 31-26-3.5-2.



       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015                         Page 9 of 11
[24]   Rule 1.7 of the Indiana Rules of Professional Conduct provides that “a lawyer

       shall not represent a client if the representation involves a concurrent conflict of

       interest.” A concurrent conflict of interest exists where “there is a significant

       risk that the representation of one or more clients will be materially limited by

       the lawyer’s responsibilities to another client[.]”


[25]   Mother hired her attorneys and the adoption agency they own to facilitate

       termination of M.C.’s parental rights to M.N. because M.C.’s sporadic child

       support payments negatively affect M.N.’s SSI disability payments. In addition,

       M.C. does not exercise visitation with four-year-old M.N. and does not want to

       be involved in M.N.’s care and upbringing. Therefore, Mother desires to

       terminate M.C.’s parental rights to maintain the status quo because M.N.’s

       special needs are best met in a predictable, stable environment. We specifically

       note that Mother, Heartland Adoption Agency, the court-appointed GAL, and

       M.C. all agree that termination of M.C.’s parental rights is in M.N.’s best

       interests.

[26]   The trial court’s generalized concern that a conflict of interest could arise

       between Mother and Heartland Adoption Agency is well-taken, and perhaps

       the better course for Mother would have been to proceed through another

       licensed agency, rather than one owned by her attorneys. However, Mother’s

       resources are clearly limited, and under the specific facts of this case, all

       involved parties are pursuing the same goal. Heartland Adoption Agency’s

       petition to terminate M.C.’s parental rights is the simplest and most expedient

       approach. For all of these reasons, we conclude that the trial court erred when it

       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015   Page 10 of 11
       dismissed Heartland Adoption Agency’s petition to terminate M.C.’s parental

       rights to M.N. because “of the significant risk of a conflict of interest.” See

       Appellant’s App. p. 18.


                                                    Conclusion

[27]   The trial court erred when it dismissed Heartland Adoption Agency’s petition

       to terminate M.C.’s parent-child relationship to M.N. Accordingly, we remand

       this case to the trial court with instructions to adjudicate the petition on its

       merits.

[28]   Reversed and remanded for proceedings consistent with this opinion.


       Friedlander, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 53A01-1410-JT-462 | March 10, 2015   Page 11 of 11
