MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Jul 12 2016, 8:51 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Cara Schaefer Wieneke                                    Michael Cheerva
Special Assistant to the Shelby County                   Emswiller, Williams, Noland &
Public Defender                                          Clarke PC
Brooklyn, Indiana                                        Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of K.C.:                              July 12, 2016

C.C.,                                                    Court of Appeals Case No.
                                                         73A04-1509-AD-1482
Appellant-Respondent,
                                                         Appeal from the Shelby Circuit
        v.                                               Court
                                                         The Honorable John A. Westhafer,
S.H. and L.H.,                                           Senior Judge
                                                         Trial Court Cause No.
Appellees-Petitioners
                                                         73C01-1501-AD-1



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 73A04-1509-AD-1482 | July 12, 2016       Page 1 of 5
                                          Case Summary
[1]   A biological parent is entitled to appointed counsel in an adoption proceeding

      where the adoption would result in the involuntary termination of that parent’s

      parental rights. Because the biological mother in this case contested the

      adoption of her child, she is entitled to appointed counsel if she is indigent. We

      therefore reverse and remand this case for the trial court to determine whether

      the biological mother is indigent and, if so, to appoint counsel to represent her

      at a new adoption hearing.



                            Facts and Procedural History
[2]   C.C. (“Mother”) is the biological mother of K.C., who was born November 22,

      2008. In August 2010, Mother was arrested for, among other things, having an

      illegal drug lab in her home while K.C. was present. Mother pled guilty and

      was sentenced to eight years, with four years to be served in the Indiana

      Department of Correction and four years suspended to probation. While she

      was in prison, Mother agreed to allow her sister, Cassie, to be K.C.’s guardian.

      The guardianship was filed in Madison Circuit Court. See Appellant’s Supp.

      App. p. 3. Cassie continued to be K.C.’s guardian when Mother was released

      from prison to a work-release facility.

[3]   Cassie later learned that she had terminal cancer and requested co-guardians for

      K.C. K.C. was placed with L.H. and S.H. (“the adoptive parents”) on July 31,




      Court of Appeals of Indiana | Memorandum Decision 73A04-1509-AD-1482 | July 12, 2016   Page 2 of 5
      2014, and the Madison Circuit Court appointed the adoptive parents co-

      guardians with Cassie on September 25, 2014. Cassie died in November 2014.

[4]   Mother was released from work release in late January 2015. On January 27,

      2015, the adoptive parents filed a petition to adopt K.C. in Shelby Circuit

      Court. The adoptive parents alleged that Mother’s consent to the adoption was

      not required under Indiana Code section 31-19-9-8 because Mother knowingly

      failed to provide for the care and support of K.C. for at least one year when she

      was able to do so. Appellant’s App. p. 11. Mother, pro se, filed a handwritten

      motion in which she contested the adoption and claimed that she did not have

      any money to hire a lawyer. Id. at 24.


[5]   In the meantime, Mother requested parenting time with K.C. in the

      guardianship case, and a hearing was held in Madison Circuit Court in March

      2015. Near the end of the hearing, Mother asked the trial court to appoint her

      counsel. Ex. 8, p. 70. The trial court instructed Mother to fill out a form.

      Mother completed the form and was appointed counsel. Appellant’s Supp.

      App. p. 8. The court continued the matter to August 2015.

[6]   But before this hearing could be held, the Shelby Circuit Court held a hearing in

      the adoption case on August 26, 2015. This was the first (and only) hearing in

      the adoption case. Both Mother and K.C.’s biological father appeared pro se.

      At the beginning of the hearing, Mother asked the trial court to appoint her

      counsel. Tr. p. 4. The trial court responded: “There are legal organizations

      that might represent you, but [I’m] not accustomed to appointing counsel in an


      Court of Appeals of Indiana | Memorandum Decision 73A04-1509-AD-1482 | July 12, 2016   Page 3 of 5
      adoption case.” Id. The court then proceeded with the hearing and found that

      Mother’s consent to the adoption was not required because she knowingly

      failed to provide for the care and support of K.C. for at least one year when she

      was able to do so. Appellant’s App. p. 46. The court terminated Mother’s and

      the biological father’s parental rights and entered a decree of adoption of K.C.

      in favor of the adoptive parents.           Id. at 48.


[7]   Mother now appeals.



                                 Discussion and Decision
[8]   Mother raises two issues on appeal, one of which we find dispositive: whether

      the trial court erred in denying her request for appointed counsel without first

      determining whether she was indigent. Indiana Code section 31-32-2-5

      provides that a parent “is entitled to representation” in proceedings to terminate

      parental rights. An adoption proceeding is an indirect method of terminating

      parental rights. See Ind. Code § 31-19-15-1(a) (noting that “the parent-child

      relationship is terminated after the adoption unless the parent-child relationship

      was terminated by an earlier court action . . . .”). Indeed, this Court has held

      that a parent’s right to counsel in Section 31-32-2-5 applies to adoption

      proceedings where the adoption would result in the involuntary termination of

      the parental rights of one or both of the natural parents. In re Adoption of K.W.,

      21 N.E.3d 96, 99 (Ind. Ct. App. 2014) (citing Taylor v. Scott, 570 N.E.2d 1333

      (Ind. Ct. App. 1991), trans. denied). Accordingly, contrary to the trial court’s

      understanding of the law, if Mother is indigent, then she is entitled to appointed

      Court of Appeals of Indiana | Memorandum Decision 73A04-1509-AD-1482 | July 12, 2016   Page 4 of 5
       counsel. See In re G.P., 4 N.E.3d 1158, 1167 (Ind. 2014) (acknowledging that

       the denial of the right to counsel in such cases requires reversal; a showing of

       prejudice is not required).

[9]    Based on the record before us, it is likely that Mother is indigent. Indeed, after

       Mother filed her notice of appeal in this case, the Shelby Circuit Court found

       that Mother was eligible for court-appointed appellate counsel and referred her

       case to the public defender’s office. We therefore reverse and remand this case

       for the trial court to determine whether Mother is indigent and, if so, to appoint

       counsel to represent her at a new adoption hearing.

[10]   Reversed and remanded.

       Barnes, J., and Mathias, J., concur.




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