MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    Dec 27 2018, 10:12 am
regarded as precedent or cited before any
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:
Danielle Sheff                                           INDIANA DEPARTMENT OF
Indianapolis, Indiana                                    CHILD SERVICES
                                                         Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis
                                                         ATTORNEY FOR APPELLEE:
                                                         CHILD ADVOCATES, INC.
                                                         Toby Gill
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018            Page 1 of 15
      In Re the Termination of the                             December 27, 2018
      Parent-Child Relationship of:                            Court of Appeals Case No.
                                                               18A-JT-1250
      D.C. (Minor Child)
                                                               Appeal from the Marion Superior
      and                                                      Court
      J.R. (Mother),                                           The Honorable Gary Chavers,
      Appellant-Respondent,                                    Judge Pro Tem
                                                               The Honorable Larry Bradley,
              v.                                               Magistrate
                                                               Trial Court Cause No.
      Indiana Department of Child                              49D09-1709-JT-818
      Services,
      Appellee-Petitioner,

      and

      Child Advocates, Inc.,

      Appellee-Guardian Ad Litem.



      Tavitas, Judge.


                                             Case Summary
[1]   J.R. (“Mother”) appeals the termination of her parental rights to D.C.

      (“Child”). We reverse and remand for further proceedings.


                                                     Issue
[2]   On appeal, Mother raises three issues, of which we find the first to be

      dispositive. We restate the dispositive issue as whether the trial court erred in

      failing to disqualify counsel for Child Advocates from his representation in the



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018    Page 2 of 15
      termination proceedings where counsel previously represented Mother in a

      2013 child in need of services (“CHINS”) matter.


                                                        Facts
[3]   Mother is the biological parent of the Child. In 2013, after Mother tested

      positive for illegal substance use, the Marion County Office of Family and

      Children (“DCS”) opened a CHINS action (the “2013 CHINS action”) as to

      the Child and another child of Mother’s, M. At the time, Mother was pregnant

      with twins. The 2013 CHINS action ended with a guardianship after Mother

      agreed to allow her brother, B.B., to serve as guardian for the Child and M.

      Attorney Ryan Gardner represented Mother in the 2013 CHINS action and

      prepared guardianship filings on behalf of B.B.


[4]   On May 31, 2016, the Henry County Office of Family and Children initiated a

      CHINS action (“the 2016 CHINS action”) as to the Child and M. due to

      “allegations of abandonment and educational and medical neglect” by Mother. 1

      Appellant’s App. Vol. II p. 15. The Child and M. were “ordered detained and

      placed outside [Mother’s] home” at the June 1, 2016, initial hearing. Id. On

      December 22, 2016, the trial court determined that the Child was a CHINS




      1
          On July 14, 2016, the 2016 CHINS action was transferred to Marion County, where the Child resided.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018              Page 3 of 15
      after Mother admitted that she lacked housing and financial means to provide

      for the Child. 2


[5]   On January 20, 2017, the trial court entered a dispositional order, in which it

      adopted DCS’ recommendation and ordered Mother to participate in various

      services. In August 2017, citing Mother’s lack of progress, DCS and the

      guardian ad litem (“GAL”), Child Advocates, recommended that the

      permanency plan for the Child should be changed from reunification to

      adoption.


[6]   On December 2, 2017, DCS filed a petition for termination of Mother’s

      parental rights to the Child. The trial court conducted the evidentiary fact-

      finding hearing on DCS’ petition on April 23, 2018. DCS appeared by counsel,

      and Attorney Gardner appeared as counsel for Child Advocates. During a

      break in DCS’ presentation of its case-in-chief, Attorney Gardner disclosed his

      previous representation of Mother in the 2013 CHINS action as follows:


              MR. GARDNER: Your Honor before DCS calls the next
              witness I wanted to . . . . I have a bit of candor toward the
              tribunal, so I wanted to make sure the court was aware. I don’t
              believe that there’s a conflict. I do not remember this case but
              apparently as I look through DCS’ exhibits. If you’ll remember
              this case was initially set before hand [sic], Jennifer Balhon, from
              our office was covering it once it got continued out it fell on my
              docket, but it looks like from the 2013 case I’m the one who




      2
       According to the order of termination, M. “is still involved in a CHINS proceeding” and the permanency
      plan as to M. “is other than reunification.” App. Vol. II p. 16.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018            Page 4 of 15
        handled the Guardianship or at least drafted it before it was two
        months before I left the Child Advocates, two months before I
        left I prepared the Guardianship for Mom’s brother and was the
        Public Defender appointed to represent Mom, so I was on the
        case for a couple of months and I left I have had no involvement
        with this particular case obviously. I don’t believe that my
        limited involvement with that case creates a conflict where I
        would not be able to continue on this case, but I did want to let
        everyone know that I was apparently the public defender in 2013
        who was appointed to this case and I’m just realizing that.


        THE COURT: That was the previous case?


        MR. GARDNER: Yeah, the 2013.


        THE COURT: Okay.


        [Counsel for DCS]: We have no objection.


        THE COURT: You just did the Guardianship paperwork? You
        really had nothing to do with . . . .


        MR. GARDNER: I did [sic] really have anything to do with
        most of that case. As I read through the documents that were
        shown . . . . I left the Public Defender’s office in June 2013. It
        looks [sic] I did the . . . I was appointed the 18th of May in 2013
        so I was on there very briefly the fact finding rolled around and it
        looked like the plan was a Guardianship with her brother so I
        went ahead and prepared the paperwork for that but that was the
        extent of my involvement. I did want to let the court know that
        at least that I was and let the party know that I was appointed as
        Mother’s PD for that brief period of time.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 5 of 15
              [Counsel for Mother]: And Mom believes that is a conflict based
              on at that [sic] in her words he was trying to help her out and
              now he’s trying to take the kids away from her in her words, so
              she believes that is a conflict of interest.


              MR. GARDNER: I would not [find a conflict of interest,] your
              Honor though it was two separate cases five years apart um I had
              very limited contact with Mom except for to prepare the
              paperwork for the Guardianship for her brother and after that
              actually after I prepared the paperwork I left the public defender’s
              office. Mr. Hayden took over my docket and actually did the
              Guardianship hearing and since then I’ve had zero contact or
              involvement with the children or with mother, so I don’t believe
              that context is recent enough or consistent enough to create the
              type of conflict that would require that I would not be able to
              cover this case, but I will defer to the courts, Judge.


              THE COURT: Oh well you’ll be on the case. . . . .


      Tr. Vol. II pp. 30-32.


[7]   The evidentiary hearing proceeded. DCS called witnesses and presented

      evidence, and Child Advocates agreed that adoption was in the Child’s best

      interest. In an order, dated January 17, 2018, the trial court granted DCS’

      petition to terminate Mother’s parental rights to the Child.


[8]   On August 17, 2018, Mother submitted her brief of appellant. On September

      17, 2018, Child Advocates filed a verified motion to reverse and remand and

      moved, in the alternative, for a new briefing schedule. Child Advocates argued

      that “remand is appropriate and ‘necessary for the administration of justice.’”

      See Verified Motion to Remand, p. 2. Child Advocates further stated:

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 6 of 15
                If Child Advocates, Inc. were to file its brief, it would concede
                that the circumstances of this case create an appearance of
                impropriety, and that once it was determined that [Attorney]
                Gardner had represented Mother in a previous child in need of
                services case, even without any memory of mother or
                recollection of the facts of her previous case, because mother did
                not waive the potential conflict, he should have been disqualified
                as counsel for Child Advocates, Inc.


       Id. at 3. 3


[9]    On October 4, 2018, DCS filed its brief of appellee, wherein DCS “agree[d]

       with Mother’s statement of the facts relating to the attorney conflict of interest

       issue” and concurred with Child Advocates’ concession of reversible error. 4

       Appellee’s Br. p. 5.


                                                      Analysis
[10]   Mother argues that the trial court abused its discretion when it denied her

       motion to disqualify Attorney Gardner from representing Child Advocates in

       the termination proceedings. We agree. Child Advocates concedes reversible

       error on the resulting conflict of interest issue, and DCS concurs.




       3
         On November 27, 2018, Child Advocates filed a notice of intent to rest on verified motion to remand and to
       forgo filing a response to Mother’s brief of appellant. We accepted Child Advocates’ notice on October 2,
       2018.
       4
        DCS also argued that, “[t]o the extent this Court does not find Mother’s issue dispositive regarding the
       conflict of interest . . . the evidence otherwise clearly and convincingly supports termination of Mother’s
       parental rights. Mother does not challenge the court’s findings of fact. The unchallenged findings—which
       must be accepted as correct—demonstrate the trial court’s termination order is not clearly erroneous.”
       Appellee’s Br. p. 13.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018                Page 7 of 15
[11]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. In re

       K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,

       1230 (Ind. 2013). “[A] parent's interest in the upbringing of [his or her] child is

       ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]

       [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054

       (2000)).


[12]   “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) (quotations omitted). “Likewise, due process

       protections at all stages of CHINS proceedings are vital because every CHINS

       proceeding has the potential to interfere with the rights of parents in the

       upbringing of their children.” Id. (quotation omitted). Our supreme court has,

       thus, urged exercise of the utmost caution in “interfering with the makeup of a

       family and entering a legal world that could end up in a separate proceeding

       with parental rights being terminated.” In re K.D. & K. S., S.S. v. Ind. Dep’t of

       Child Servs., 962 N.E.2d 1249, 1259 (Ind. 2012).


[13]   It is well-settled that a trial court may disqualify an attorney for a violation of

       the Indiana Rules of Professional Conduct that arises from the attorney’s

       representation before the court. XYZ, D.O. v. Sykes, 20 N.E.3d 582, 585 (Ind.

       Ct. App. 2014). This authority to disqualify “has been described as necessary to

       prevent ‘insult and gross violations of decorum . . . .’” Id. We review a trial

       court’s decision regarding disqualification for an abuse of discretion. Id. “An

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 8 of 15
       abuse of discretion occurs when the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it or it has misinterpreted

       the law.” Id.


[14]   Indiana Professional Conduct Rule 1.9(a) states, “A lawyer who has formerly

       represented a client in a matter shall not thereafter represent another person in

       the same or a substantially related matter in which that person’s interests are

       materially adverse to the interests of the former client unless the former client

       gives informed consent, confirmed in writing.”


[15]   In Sykes, the plaintiffs sued a doctor and his employer-hospital for medical

       malpractice. The doctor subsequently moved to disqualify the law firm that

       represented the plaintiffs because that law firm employed an attorney who had

       previously represented the doctor in multiple medical malpractice cases.

       Although the imputed disqualification issue in Sykes arose in the context of a

       law firm, the panel’s analysis is nonetheless instructive here.


[16]   The Sykes court analyzed the issue under the following three-part test employed

       by the Seventh Circuit Court of Appeals:


               First, we must determine whether a substantial relationship exists
               between the subject matter of the prior and present
               representations. If we conclude a substantial relationship does
               exist, we must next ascertain whether the presumption of shared
               confidences with respect to the prior representation has been
               rebutted. If we conclude this presumption has not been rebutted,
               we must then determine whether the presumption of shared
               confidences has been rebutted with respect to the present


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 9 of 15
               representation. Failure to rebut this presumption would also
               make disqualification proper.


       Sykes, 20 N.E.3d at 586 (quoting Gerald v. Turnock Plumbing, Heating, & Cooling,

       LLC, 768 N.E.2d 498, 502 (Ind. Ct. App. 2002)).


[17]   As to whether the prior and present representations were substantially related

       for purposes of Rule 1.9, the Sykes panel determined that (1) the attorney’s prior

       representations of the doctor involved defending the doctor against claims of

       medical malpractice; and (2) the present representation – in which the

       attorney’s new employer, the law firm, was representing the plaintiffs –

       involved one claim of medical malpractice and various related claims arising

       from the hospital’s alleged failure to investigate the doctor’s previous

       malpractice cases. The Sykes panel, thus, found “[t]he issues in the prior and

       present cases are undoubtedly closely interwoven . . . [and] there is a substantial

       risk that confidential factual information as would normally have been obtained

       in the prior representations would materially advance the Plaintiffs’ position in

       the present case.” Id. at 587. Accordingly, on the first prong of the test, the

       Sykes panel concluded that the prior and present cases were substantially

       related.


[18]   Next, the Sykes panel considered the rebuttable presumption that the attorney

       had actually received confidential information from the doctor during the prior

       representation. As the Sykes panel stated, “we must determine whether the

       attorney whose change of employment created the disqualification issue was

       actually privy to any confidential information [her] prior law firm received from
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 10 of 15
       the party now seeking disqualification of [her] present firm.” Id. at 588 (quoting

       Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)).


[19]   Citing comment three to Rule 1.9, for the proposition that “[a] conclusion as to

       whether a lawyer possesses such confidential information ‘may be based on the

       nature of the services the lawyer provided the former client and information

       that would in ordinary practice be learned by a lawyer providing such

       services,’” the Sykes panel found that the presumption of shared confidences in

       the prior representations was not rebutted. Prof. Cond. R. 1.9, cmt. 3. The

       panel reasoned:


               It is undisputed that [the attorney] was the primary and, at times,
               only attorney representing Doctor in each of those prior medical
               malpractice cases. As such, [the attorney] was privy to much
               confidential information, including but not limited to Doctor’s
               personal thoughts and mental impressions regarding the facts and
               circumstances and the strengths and weaknesses of those cases.


       Id. at 588.


[20]   As to the final prong, whether “‘there is a rebuttable presumption that the

       knowledge possessed by one attorney in a law firm is shared with the other

       attorneys in the firm,’” the Sykes panel concluded, pursuant to Rule 1.10(c), that

       no effort by the attorney’s new employer, the law firm, to screen or “insulate

       against any flow of confidential information from [the attorney] to any member

       of her present law firm,” would suffice because “imputed disqualification is per

       se and screening is not possible where the personally disqualified lawyer had

       ‘primary responsibility’ for the prior ‘matter that causes the disqualification.’”
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 11 of 15
       Id. (quoting Gerald, 768 N.E.2d at 505); id. (quoting Prof. Cond. R. 1.10(c)).

       The Sykes panel reasoned that, because the attorney served as the doctor’s

       primary, and often only, attorney in the previous six medical malpractice cases,

       the law firm could not merely screen the attorney to avoid imputation of the

       conflict to the law firm.


[21]   In rendering its judgment, the Sykes panel cautioned, “we must be cognizant

       that ‘public trust in the integrity of the judicial process requires that any serious

       doubt be resolved in favor of disqualification’” and found that the doctor’s

       claim raised “serious doubt” about the law firm’s involvement in the litigation.

       Id. at 589. Accordingly, the Sykes panel concluded that the trial court abused its

       discretion in denying the doctor’s motion to disqualify his former attorney’s

       new employer-law firm from the proceedings. The Sykes panel reversed the trial

       court’s judgment and remanded for further proceedings. We feel similarly

       constrained here.


[22]   Here, as to whether the prior and present representations are substantially

       related for purposes of Rule 1.9, the 2013 CHINS action and the 2016 CHINS

       action each arose from DCS’ claims that the Child was a CHINS and that

       Mother was unable to meet the Child’s basic needs. There can be no

       reasonable dispute regarding this prong. The prior and present CHINS matters

       were substantially related.


[23]   Nor can there be any doubt as to the second prong -- the rebuttable presumption

       that Attorney Gardner actually received confidential information from Mother


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 12 of 15
during the prior representation. By Attorney Gardner’s admission, he served as

Mother’s primary counsel for approximately two months of the 2013 CHINS

action; his recollection is that his role was limited to preparing guardianship

materials for Mother’s brother, B.B. Attorney Gardner’s role was more

involved, however, as Mother contends, without challenge from Child

Advocates or DCS:


        In fact, Mr. Gardner did appear at a pre-trial hearing in the 2013
        CHINS [action] as [Mother]’s counsel unrelated to the
        guardianship . . . and he also represented [Mother] at the CHINS
        fact-finding hearing. [ ] At the subsequent guardianship hearing,
        Mr. Gardner appeared as [Mother]’s brother’s private counsel.


Appellant’s Br. p. 25. Mother argues further, and we agree, that:


        In the ordinary course of such representation, the attorney would
        necessarily learn information about [Mother]’s relationship with,
        and acts or omissions with regard to, [the Child]. The only
        logical conclusion that could be reached from Mr. Gardner’s
        representation of [Mother] in the CHINS proceedings is that
        confidential information had been disclosed in the course of his
        representation of [Mother].


Id. at 26. In recognition of the practical aspects of representing a parent in

CHINS proceedings, with the not-insignificant potential for termination of

parental rights, we find that the presumption that Attorney Gardner actually

received confidential information from Mother during the prior representation

has not been rebutted here.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 13 of 15
[24]   As to the final prong of the Gerald test, whether “there is a rebuttable

       presumption that the knowledge possessed by one attorney in a law firm is

       shared with the other attorneys in the firm,” we need only look to Child

       Advocates’ concession below:


               . . . [T]he circumstances of this case create an appearance of
               impropriety, and that once it was determined that [Attorney]
               Gardner had represented Mother in a previous child in need of
               services case, even without any memory of mother or
               recollection of the facts of her previous case, because mother did
               not waive the potential conflict, [Attorney Gardner] should have
               been disqualified as counsel for Child Advocates, Inc.


       Verified Motion to Remand, p. 3.


[25]   For the foregoing reasons, we find that the trial court abused its discretion in

       denying Mother’s motion to disqualify Attorney Gardner from representing

       Child Advocates, an adverse party to Mother, in the 2016 CHINS action, where

       Attorney Gardner previously represented Mother in the 2013 CHINS action.


                                                 Conclusion
[26]   Given Attorney Gardner’s previous representation of Mother in a substantially

       related matter, the trial court abused its discretion in denying Mother’s motion

       to disqualify Attorney Gardner from his subsequent representation of an

       adverse party, Child Advocates, in an action involving Mother. We reverse the

       trial court’s order terminating Mother’s parental rights to the Child and remand

       for further proceedings consistent with this opinion.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 14 of 15
[27]   Reversed and remanded for further proceedings.


[28]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018   Page 15 of 15
