MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Apr 19 2017, 9:32 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Special Assistant to the State Public                    Attorney General of Indiana
Defender
                                                         Abigail R. Recker
Wieneke Law Office, LLC                                  Deputy Attorney General
Brooklyn, Indiana                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of A.A. (Minor                             April 19, 2017
Child) Child in Need of Services,                        Court of Appeals Case No.
                                                         52A02-1611-JC-2684
C.A.,
                                                         Appeal from the Miami Circuit
Appellant-Respondent,                                    Court
        v.                                               The Honorable Timothy P. Spahr,
                                                         Judge
Indiana Department of Child                              Trial Court Cause No.
Services,                                                52C01-1603-JC-34

Appellee-Petitioner.




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017           Page 1 of 6
                                          Case Summary
[1]   C.A. (“Mother”) appeals the adjudication of her daughter, A.A. (“Child”), as a

      Child in Need of Services (“CHINS”). Mother raises two related issues, which

      we consolidate and restate as whether Mother’s due process rights were violated

      when the trial court allowed Mother’s counsel to orally withdraw at the fact-

      finding hearing, with no notice, and conducted the hearing in Mother’s

      absence.


[2]   We reverse and remand.



                            Facts and Procedural History
[3]   Shortly after Mother gave birth to Child, the Department of Child Services

      (“DCS”) removed Child from Mother’s care. On March 22, 2016, DCS filed a

      CHINS petition, alleging that Mother was in a violent relationship with M.R.,

      and that the relationship posed a threat to Child. Mother was appointed a

      public defender, and counsel entered an appearance on Mother’s behalf.


[4]   A fact-finding hearing was initially scheduled for May 18, 2016, but was

      postponed several times due to continuances. The hearing was eventually

      scheduled for August 17, 2016. On July 6, 2016, Mother made several pro se

      filings, including a “Motion to Continue Pro Se” in which she alleged that her

      appointed counsel was “not representing [her] properly,” kept allowing

      continuances, and did not return phone calls. (App. at 100.) The trial court

      entered an order striking Mother’s pro se filings, and a status hearing was set for

      Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017   Page 2 of 6
      August 3, 2016 regarding Mother’s dissatisfaction with counsel. Mother did

      not attend the hearing, and Mother remained represented by counsel.


[5]   On August 17, 2016, the fact-finding hearing was held, and Mother was absent.

      At the beginning of the hearing, the trial court asked Mother’s counsel about

      contact between them, and counsel responded:


              I’ve had no contact with [Mother] other than the one time that
              she was in Court. She failed to appear for her appointment,
              we’ve tried to call her on three phone lines, none of which have
              voicemail set up. One of them’s not accepting calls, at least, I
              sent her a letter after the last hearing indicating she if wished [sic]
              to discuss the case[,] she would need to set an appointment
              because her phone wasn’t set up. I’ve never had any . . . contact
              from (inaudible).


      (Tr. at 4.) Counsel also confirmed that he sent the date of the fact-finding

      hearing to Mother’s last-known address. The trial court inquired about DCS’s

      contact with Mother, and then said it would proceed with the fact-finding

      hearing. Mother’s counsel then orally moved to withdraw, and the trial court

      granted the motion. DCS then presented evidence, after which the trial court

      adjudicated Child a CHINS.


[6]   The trial court held a dispositional hearing on September 21, 2016, at which

      Mother appeared pro se. Mother explained that she did not attend the status

      hearing or the fact-finding hearing because, at those times, she had a body

      attachment warrant in a separate custody case. At the conclusion of the

      hearing, the trial court said that it was adopting DCS’s recommendations and


      Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017   Page 3 of 6
      ordering services. The trial court entered its order on October 28, 2016, Mother

      was appointed a public defender, and this appeal ensued.



                                   Discussion and Decision
[7]   Mother seeks reversal of the CHINS adjudication, contending that her due

      process rights were violated when the trial court allowed her attorney to

      withdraw at the start of the fact-finding hearing, without notice—which was

      contrary to Trial Rule 3.1(H)1—and then conducted the hearing in her absence.


[8]   Parents at all stages of CHINS proceedings have due process protections, and

      these protections are “vital” because every CHINS proceeding has the potential

      to interfere with the rights of parents in the upbringing of their children. In re

      G.P., 4 N.E.3d 1158, 1165 (Ind. 2014). “[T]he requirement of due process—

      whether set as a minimum floor by the Due Process Clause of the Fourteenth

      Amendment or established as something higher by legislative enactment”—

      embodies a requirement of “fundamental fairness.” Id. at 1168. Due process

      “requires ‘the opportunity to be heard at a meaningful time and in a meaningful

      manner.’” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v.

      Eldridge, 424 U.S. 319, 333 (1976)).




      1
       Indiana Trial Rule 3.1(H) provides, inter alia, that “[a]n attorney representing a party may file a motion to
      withdraw representation of the party upon a showing that the attorney has sent written notice of intent to
      withdraw to the party at least ten (10) days before filing a motion to withdraw representation.” The instant
      motion to withdraw, made orally with no notice, was plainly contrary to this rule.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017                Page 4 of 6
[9]    The process due in a CHINS proceeding often turns on the balancing of three

       Mathews factors: (1) the private interests affected by the proceeding; (2) the risk

       of error created by the State’s chosen procedure; and (3) the countervailing

       governmental interest supporting use of the challenged procedure. See id.

       Mother declines to apply the Mathews factors. Instead, she directs us to In re

       G.P., in which our supreme court noted that, “Mathews analysis aside, it is also

       true that ‘if the State imparts a due process right, then it must give that right.’”

       4 N.E.3d at 1166 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). That is,

       denial of a statutory entitlement “would constitute a failure to afford [a] parent

       the process to which the General Assembly says he or she is due.” Id.


[10]   Mother points out that parents in CHINS adjudication proceedings have several

       statutory entitlements, including the right to cross-examine witnesses and the

       right to introduce evidence. See Ind. Code § 31-32-2-3. Mother contends that,

       given the circumstances of the fact-hearing, she was effectively deprived of these

       State-imparted rights, and thereby denied due process. We agree. Although we

       certainly do not condone Mother’s decision not to appear at the fact-finding

       hearing, critically, Mother made that decision when she was still represented.

       Had Mother known of her attorney’s intention to withdraw, Mother could have

       made an informed decision about whether to attend the fact-finding hearing and

       exercise her statutory rights as a pro se litigant—or potentially seek new counsel.

       Yet, Mother had no notice of counsel’s intentions, and was effectively

       prevented from exercising her statutory rights when the trial court conducted

       the hearing in her absence. In this regard, the CHINS proceeding was rendered

       Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017   Page 5 of 6
       fundamentally unfair,2 and Mother was denied due process. Cf. D.A. v. Monroe

       Cty. Dep’t of Child Servs., 869 N.E.2d 501, 510-12 (Ind. Ct. App. 2007) (engaging

       in a three-factor Mathews analysis and concluding that a parent was denied due

       process under similar circumstances). We therefore reverse the CHINS

       adjudication and remand for a proper fact-finding hearing.



                                                   Conclusion
[11]   Mother’s due process rights were violated when the trial court allowed Mother’s

       counsel to withdraw, without notice, and conducted the fact-finding hearing in

       Mother’s absence.


[12]   Reversed and remanded.


       Vaidik, C.J., and Robb, J., concur.




       2
         We are not persuaded by the State’s argument that Mother invited error of this nature because she
       expressed dissatisfaction with counsel, by filing the pro se motion that was ultimately stricken, or because she
       failed to attend the fact-finding hearing when, to Mother’s knowledge, she was represented by counsel.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1611-JC-2684 | April 19, 2017                Page 6 of 6
