MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Jan 31 2018, 9:59 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                        Curtis T. Hill, Jr.
Greenwood, Indiana                                        Attorney General of Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 31, 2018
on the Parent-Child Relationship                          Court of Appeals Case No.
of A.A.D. and A.C.D.;                                     79A05-1708-JT-1949
E.B. (Mother)                                             Appeal from the Tippecanoe
                                                          Superior Court
Appellant-Respondent,
                                                          The Honorable Faith A. Graham,
        v.                                                Judge
                                                          Trial Court Cause Nos.
The Indiana Department of                                 79D03-1610-JT-103
                                                          79D03-1610-JT-104
Child Services,
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018              Page 1 of 11
                                        Statement of the Case
[1]   E.B. (“Mother”) appeals the termination of the parental relationship with her

      children, A.A.D. (“A.A.D.”) and A.C.D. (“A.C.D.”).1 The gravamen of her

      argument is that reversible error occurred when the trial court failed to ensure

      the appointment of a court-appointed special advocate (“CASA”) to represent

      the interests of her children in the termination hearing as required by INDIANA

      CODE § 31-35-2-7. Because Mother is correct, we reverse and remand with

      instructions for the trial court to ensure the appointment of a CASA.


[2]   We reverse and remand with instructions.


                                                       Issue
              The dispositive issue is whether reversible error occurred when
              the trial court failed to ensure the appointment of a CASA to
              represent the interests of Mother’s two children.


                                                       Facts
[3]   Mother and Father are the parents of A.A.D., who was born in March 2009,

      and A.C.D., who was born in August 2015. When A.C.D. was born, his

      meconium tested positive for marijuana. He was also suffering withdrawal

      symptoms from Suboxone, which Mother had taken while she was pregnant.

      The Department of Child Services (“DCS”) removed six-year-old A.A.D. and




      1
       The trial court also terminated A.D.’s (“Father”) parental relationship with A.A.D. and A.C.D. Father is
      not a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018        Page 2 of 11
      A.C.D. from their parents, and both children were adjudicated to be Children

      in Need of Services (“CHINS”). In October 2015, the trial court ordered

      Mother to participate in substance abuse treatment, home-based case

      management services, and individual therapy. Mother was also ordered to

      remain drug and alcohol free and to maintain stable housing and employment

      to meet the needs of her family.


[4]   When Mother failed to follow the court-ordered parent participation plan and

      was subsequently charged with Level 6 felony theft, DCS filed a petition to

      terminate her parental rights in October 2016. The Chronological Case

      Summary (“CCS”) reveals that in November 2016, the trial court held an initial

      hearing wherein Mother denied the allegations in the termination petition. The

      specific CCS entry for that hearing states as follows: “Court appoints the

      CASA Program in this cause to represent and protect the best interests of the

      child(ren). CASA Director shall immediately assign a specific CASA.” (App.

      4, 9). The order on the initial hearing also states as follows: “Court appoints

      the CASA Program in this cause to represent and protect the best interests of

      the child(ren). CASA director shall immediately assign a specific CASA.”

      (App. 21). However, no CASA was ever appointed.


[5]   The trial court held the first day’s hearing on the termination petition in

      January 2017. At that time, both Mother and Father had executed documents

      consenting to paternal grandfather’s (“Paternal Grandfather”) adoption of the

      children. However, the trial court explained to the parents that it had “not even

      approved [Paternal Grandfather] for placement [and that it] could approve that

      Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018   Page 3 of 11
      or could not approve that.” (Tr. 7). Also at the hearing, the trial court noted

      that, “[n]o CASA is assigned to this.” (Tr. 12). DCS Caseworker Karen Travis

      testified that the children had been placed in non-relative foster care since

      October 2015.


[6]   The second day’s hearing on the termination petition was held in April 2017.

      DCS Caseworker Kelly Brewer (“Caseworker Brewer”) testified that Mother,

      who had been convicted and sentenced to ten years for robbery, had also been

      “unsuccessfully discharged from services with multiple providers.” (Tr. 30).

      Caseworker Brewer, who further testified that Mother had failed to maintain

      stable employment and housing, recommended terminating Mother’s parental

      rights. After DCS had finished questioning Caseworker Brewer, the trial court

      stated as follows: “CASA any partic – oh we don’t have a CASA assigned to

      this case. I am sorry. [Mother’s Counsel], any particular questions?” (Tr. 41).


[7]   Mother testified that she wanted Paternal Grandfather to adopt the children so

      that she had the “chance to be in [her] kids’ lives when [she got] out of prison.”

      (Tr. 51). She explained that she did not “want to lose [her children] forever and

      if it [meant] that [she got her] rights terminated[,] [she] just want[ed her

      children] to be with family.” (Tr. 53). Father testified that he worked ten to

      twelve hour shifts five to six days a week and that he was not in a position to be

      the primary caretaker of his children. He also testified that he wanted Paternal

      Grandfather to adopt the children. No additional witnesses testified.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018   Page 4 of 11
[8]    In July 2017, the trial court issued an order involuntarily terminating Mother’s

       parental rights. The order provides, in relevant part, as follows:


               DCS has a satisfactory plan of adoption for the care and
               treatment of the children following termination of parental rights.
               The children can be adopted and there is reason to believe an
               appropriate permanent home has or can be found for the children
               ***with a relative.


       (App. 39) (asterisks in original). Mother now appeals.


                                         Statement of the Case
[9]    Mother argues that the trial court committed reversible error when it failed to

       ensure the appointment of a CASA as required by statute. We agree. The

       traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. A

       parent’s interest in the care, custody, and control of her children is “‘perhaps

       the oldest of the fundamental liberty interests.’” Bester v. Lake Cnty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v. Granville,

       530 U.S. 57, 65 (2000)). Because termination proceedings implicate the

       fundamental relationship between parent and child, the legislature has provided

       a detailed list of procedural requirements for courts to follow in such

       proceedings. Matter of S.L., 599 N.E.2d 227, 229 (Ind. Ct. App. 1992).


[10]   For example, INDIANA CODE § 31-35-2-7 provides that where, as here, a parent

       objects to the termination of the parent-child relationship, “the court shall

       Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018   Page 5 of 11
       appoint: (1) a guardian ad litem [(“GAL”)]; (2) a court appointed special

       advocate; or (3) both . . . for the child.” (emphasis added). Because neither

       party challenges the trial court’s failure to appoint a GAL, we focus our

       discussion on the trial court’s failure to ensure the appointment a CASA.


[11]   A CASA is a community volunteer who has been appointed by the trial court to

       represent and protect the best interests of a child with services requested by the

       court, including researching, examining, advocating, facilitating, and

       monitoring the child’s situation. IND. CODE § 31-9-2-28(b). This court has

       previously explained that a CASA is an “integral participant[] in looking after

       the best interest of children who are subjected to our court system.” 2 In re N.S.,

       908 N.E.2d 1176, 1179 (Ind. Ct. App. 2009). The statutory right to have a

       CASA to represent their best interests belong to the children, not the parent.

       S.L. 599 N.E.2d at 229. Further, neither the parent nor the State can waive the




       2
           We specifically explained in detail as follows:

                  The State at first glance is seemingly acting to promote or protect the interest of the
                  children. However, it also has an interest in bringing to an end the financial burden it is
                  bearing while the child is in [DCS’s] custody. By terminating the parental rights, rather
                  than continuing with the CHINS procedures, the State pursues the route leading to the
                  adoption of the child and a conclusion to the State’s financial burden for the children.
                  Therefore, the interests of [DCS] and the interests of the child are not necessarily
                  identical. The legislature recognizing this reality enacted several statutes which direct or
                  permit the court to appoint a representative for the children involved in such proceedings.

       S.L., 599 N.E.2d at 230 n.3.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018              Page 6 of 11
       children’s statutory right, and the failure to appoint a CASA in such cases is not

       harmless error. Id. at 229, 230.


[12]   Here, the trial court initially complied with the statute when it ordered the

       appointment of a CASA. However, at both days of the termination hearing,

       the trial court acknowledged that no CASA had been appointed.3 At the time

       of the hearing, the children were nine and two years old. Because of the trial

       court’s failure to ensure the appointment of a CASA, no one represented the

       interests of these young children. See id. As a result, reversible error occurred.

       See id. See also Jolley v. Posey Cnty. Dep’t of Pub. Welfare, 624 N.E.2d 23, 23 (Ind.

       Ct. App. 1993) (reversing and remanding when the trial court failed to appoint

       a GAL in parental termination proceedings).


[13]   Reversed and remanded with instructions.


       Kirsch, J., concurs.


       Bailey, J., concurs with separate opinion.




       3
         The transcript reveals that “a representative from the CASA Office” attended the first day’s hearing in
       January 2017. (Tr. at 4). However, the representative did not testify or make recommendations, and despite
       the representative’s presence, the trial court specifically stated that no CASA had been assigned to represent
       the children’s interests. It appears that no representative attended the April 2017 hearing. Additionally, the
       CCS does not show that a specific CASA had been assigned or appointed.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018           Page 7 of 11
                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          Court of Appeals Case No.
on the Parent-Child Relationship                          79A05-1708-JT-1949
of A.A.D. and A.C.D.;
E.B. (Mother),
Appellant-Respondent,

        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge, concurring with separate opinion.


I agree with my colleagues that, where a parent objects to the termination of the

parent-child relationship, Indiana Code Section 31-35-2-7 requires that the court

appoint a guardian ad litem (“GAL”) to represent the child. I write separately

to clarify that E.B. (“Mother”) did object to the termination of her parental

rights, in that she did not consent to the termination pursuant to Indiana Code

Section 31-35-1-6.


Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018   Page 8 of 11
“The voluntary termination of the parent-child relationship is controlled by statute.”

      Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 282 (Ind. 2003).

      In order for the court to accept a parent’s voluntary consent to the termination

      of her parental rights:


               the parents must give their consent in open court unless the court
               makes findings of fact upon the record that:


               (1) the parents gave their consent in writing before a person
               authorized by law to take acknowledgments; and


               (2) the parents were:


               (A) advised in accordance with section 12[ 4] of this chapter; and


               (B) advised that if they choose to appear in open court, the only
               issue before the court is whether their consent was voluntary.


      Ind. Code § 31-35-1-6(a).


Here, Mother did not give her consent to termination of her parental rights in writing, 5

      nor was there evidence that she was advised of her rights in accordance with

      Indiana Code Section 31-35-1-6(a)(2). Therefore, in order for her parental

      rights to be voluntarily terminated, Mother must have consented in open court




      1
       Section 12 lists the advisements that parents must be given, including advisement that their consent is
      permanent and cannot be revoked unless obtained by fraud or duress. I.C. § 31-35-1-12.
      2
        Mother’s written consent for her children’s paternal grandfather to adopt them was not admitted into
      evidence and, in any case, was not a written consent to terminate her parental rights.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018           Page 9 of 11
      to the termination. I.C. § 31-35-1-6(a). However, Mother’s testimony

      regarding her wishes were ambiguous. She did consent in open court to the

      paternal grandfather adopting her children so that the children could “be with

      family,” and she could “have a relationship with them” when she was released

      from prison. Tr. at 51-52. Yet, regarding the termination of her parental rights,

      Mother stated, “I just don’t want to lose [the children] forever and if it means

      that I get my rights terminated I just want them to be with family. That is all I

      want.” Id. at 52-53. That is hardly a clear statement that she consented to the

      termination of her parental rights. Rather, taken as a whole, Mother’s

      testimony shows her intent that her rights to the children be terminated only if

      they are adopted by family, such as the paternal grandfather. That was her

      intent despite the trial court’s advisement that it would not necessarily agree to

      place the children with the paternal grandfather.


It is beyond dispute that “the parent-child relationship is one of the most valued

      relationships in our culture.” Neal, 796 N.E.2d at 285 (quotation and citation

      omitted). Given parents’ fundamental liberty interest in the parent-child

      relationship, “the certainty of a trial court’s decision to terminate a parent’s

      parental rights to his or her child is paramount.” In re V.A., 51 N.E.3d 1140,

      1144 (Ind. 2016). When the parent’s testimony regarding consent to

      termination of parental rights is ambiguous, I believe we should err on the side

      of protecting the parent-child relationship. Because Mother did not clearly

      consent in open court to the termination of her parental rights and the trial

      court did not make the findings of fact otherwise required by Indiana Code


      Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018   Page 10 of 11
Section 31-35-1-6, I agree with my colleagues that Mother “object[ed]” to the

termination of her rights for purposes of Indiana Code Section 31-35-2-7, thus

requiring the appointment of a GAL.




Court of Appeals of Indiana | Memorandum Decision 79A05-1708-JT-1949 | January 31, 2018   Page 11 of 11
