                                                                             FILED
                                                                        Dec 08 2016, 9:25 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEES
David W. Stone                                            John T. Wilson
Anderson, Indiana                                         Anderson, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of A.G. &                             December 8, 2016
J.G.                                                     Court of Appeals Case No.
                                                         48A02-1603-AD-709
A.R.,
                                                         Appeal from the Madison Circuit
Appellant-Respondent,                                    Court
        v.
                                                         The Honorable Dennis D. Carroll,
                                                         Special Judge
M.G. & J.G.,
                                                         Trial Court Cause No.
Appellees-Petitioners.
                                                         48C06-1407-AD-34




Brown, Judge.




Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016                       Page 1 of 7
[1]   A.R. appeals from the trial court’s amended decree of adoption. A.R. raises

      five issues. We find dispositive the restated issue of whether the court abused

      its discretion in granting a motion to withdraw appearance filed by A.R.’s civil

      public defender. We reverse and remand.


                                       Facts and Procedural History

[2]   On July 16, 2014, a Petition for Adoption was filed by M.G. and Je.G.

      (“Petitioners”) which alleged that Je.G. is the natural father of A.G. and Ju.G.

      (the “Children”), that M.G. was married to Je.G., and that A.R. is the natural

      mother of the Children. On July 30, 2014, A.R., pro se, filed a general answer

      and denial asking the court to deny the petition for adoption. An entry in the

      chronological case summary (“CCS”), dated September 16, 2014, states that

      A.R. requested the appointment of a civil public defender, the court heard

      evidence and found A.R. did not have the money or means to prosecute the

      case, and the court appointed William Byer, Jr., (“Attorney Byer”) as a civil

      public defender to represent her. On October 9, 2014, A.R. by counsel filed an

      amended objection to the petition for adoption. An entry in the CCS dated

      November 5, 2015, states that a hearing was scheduled for December 10, 2015,

      at 1:00 p.m.


[3]   An entry in the CCS dated November 9, 2015, states that, at the request of

      counsel, the matter was set for hearing on December 10, 2015, at 2:30 p.m., and

      another CCS entry on that date states that the hearing originally scheduled for

      1:00 p.m. on December 10, 2015, was rescheduled to 2:30 p.m. on the court’s

      own motion. Also on November 9, 2015, Attorney Byer filed a motion to
      Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016   Page 2 of 7
      withdraw appearance stating that A.R. had failed to cooperate or communicate

      with him. 1 On November 12, 2015, the court granted the motion to withdraw

      appearance. 2


[4]   The court held the scheduled adoption hearing on December 10, 2015, and the

      hearing was concluded on December 17, 2015. At the beginning of the hearing

      on December 10, 2015, A.R. asked if she could request another attorney and

      stated that she received the motion to withdraw appearance immediately before

      she was picked up and taken to jail for an unrelated matter. 3 The court did not

      appoint replacement counsel and Mother did not have counsel throughout the

      hearing. The trial court stated:

                 So what I might do . . . is let [Petitioners] put on your evidence,
                 it’s all recorded and then I’ll make a judgment as to whether or
                 not other counsel should be appointed who can come listen to
                 the record or you’re on your own. You can, you can, if it’s
                 important to you you can come up with the sums and get counsel
                 to represent you to come listen to the record to see whatever
                 needs to be done. But it doesn’t seem to me to be fair when
                 people take off court, they’re here and they shouldn’t have to be
                 sent away.




      1
       The certificate of service to Attorney Byer’s motion to withdraw states that it was served upon Petitioners’
      counsel but does not state it was served upon A.R.
      2
          The court’s order granting the motion to withdraw appearance does not list A.R. in its distribution list.
      3
       A.R. testified she was in jail because she had been picked up for failure to appear in another cause.
      Petitioners elicited testimony from a State Trooper that he had stopped A.R. on December 2, 2015, and that
      she was transported to the Madison County Jail.

      Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016                             Page 3 of 7
Transcript at 16. During the continued hearing on December 16, 2015, the

court stated:

        [W]hat I probably will do . . . is let [Petitioners] finish up your
        evidence and let [A.R.] offer anything she wants to offer pro se . .
        . Then what I will probably do is either appoint counsel or say
        no we’re not appointing counsel again but we’ll leave the record
        open for a period of time. If you want to retain counsel, you
        know from Court that everything we do is recorded, so a lawyer
        can come in whether that’s appointed counsel or retained
        counsel, a lawyer can come in, listen to the record, give you
        advice, decide what, if anything, to do on your behalf. I’m
        probably gonna go in that direction.

Id. at 83. Near the end of the hearing, the court stated:


        But what I think I am likely to do when the evidence is closed is
        put an entry on . . . , and unless I change my mind it will say one
        of two things. That the evidence has been closed but, the
        evidence in Court has been closed but the record is being left
        open for a period, and I’ll state a number of days, for either the
        Court to appoint another lawyer to represent you to review this
        record or for you to retain private counsel, if you chose to do so,
        to review the record and then if nothing additional is filed then it
        will be, the record will be closed. If something is additional filed
        we’ll wait and see what that is but, before we’d try to jump the
        gun on that. . . .


        [R]eally the issue is whether or not it’s gonna be [A.R.’s]
        responsibility if she wants to have counsel to figure out how to do
        that or if she chooses not to whether the Court would appoint
        counsel for her or how we’ll proceed on that.


Id. at 138-139.


Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016     Page 4 of 7
[5]   A CCS entry dated December 17, 2015, states in part:

              Because [A.R.] offered on [sic] satisfactory explanation for
              [Attorney] Byer’s withdrawal, no new PD will be appointed.
              However, the record will be left open until 12/29/15 to provide
              [A.R.] with an opportunity to privately retain counsel, if she
              chooses, to review the recorded record and file such
              supplemental motion(s) as may be appropriate. If counsel does
              not timely enter an appearance and file pleading(s), the evidence
              will be finally closed and the issues submitted to the Court.


      Appellant’s Appendix at 7-8.


[6]   The court issued a decree of adoption on February 4, 2016, and an amended

      decree of adoption on February 11, 2016.


                                                   Discussion

[7]   The dispositive issue is whether the trial court abused its discretion in granting

      Attorney Byer’s motion to withdraw appearance. A.R. argues that the court

      abused its discretion in granting Attorney Byer’s motion to withdraw

      appearance that did not comply with local rules and that this court has held that

      the appointment of counsel is required in an adoption case. Petitioners argue

      that Mother invited the error of which she complains by failing to cooperate or

      communicate with her attorney prior to the adoption hearing, that the denial of

      replacement counsel was harmless, and that remanding for a new adoption

      hearing would be against the Children’s best interest.


[8]   We have held that parents whose parental rights are being terminated against

      their will, including in cases of termination of parental rights by an adoption

      Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016   Page 5 of 7
      which is contested by a biological parent, have three rights: (1) the right to be

      represented by counsel; (2) the right to have counsel provided if they could not

      afford private representation; and (3) the right to be informed of the two

      preceding rights. See In re Adoption of G.W.B., 776 N.E.2d 952, 953-954 (Ind.

      Ct. App. 2002) (citations omitted); see also Ind. Code § 31-35-1-12 (cited in

      G.W.B., noting the advisement applies in cases of termination of parental rights

      by adoption over the objection of a birth parent, and providing that parents

      must be advised that they “are entitled to representation by counsel, provided

      by the state if necessary, throughout any proceedings to terminate the parent-

      child relationship against the will of the parents”).


[9]   Madison County Local Rule LR48-TR3.1-26 provides in part:

              B. An attorney’s appearance for a party will be withdrawn upon
              the filing of a motion, if:

                       1. Another attorney simultaneously appears for the party;

                       2. The attorney provides satisfactory evidence that the
                       party has discharged the attorney; or

                       3. The party acquiesces to the withdrawal.

              C. In all other circumstances, an attorney seeking permission to
              withdraw an appearance shall file a written motion stating
              justification for the withdrawal. The attorney shall give the party
              21 days’ written notice of the attorney’s intention to seek
              permission to withdraw. This notice shall (1) inform the party
              that failure to secure new counsel may result in dismissal of the
              party’s case or in entry of a judgment or ruling against the party,
              (2) set forth the date of any scheduled hearing or trial, and (3)
              include any other pertinent information.

      Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016    Page 6 of 7
[10]   The November 9, 2015 motion to withdraw appearance filed by Attorney Byer

       did not state that one of the conditions in section B of the rule occurred and did

       not state whether Attorney Byer provided A.R. with twenty-one days’ written

       notice with the information required in section C of the rule. Petitioners do not

       point to the record to show that Attorney Byer complied with the local rule.

       The trial court abused its discretion in granting Attorney Byer’s motion to

       withdraw appearance in violation of the local rule. See K.S. v. Marion Cnty.

       Dep’t of Child Services, 917 N.E.2d 158, 164-165 (Ind. Ct. App. 2009) (observing,

       in a case involving the termination of parental rights, there was no evidence that

       the mother’s attorney informed the mother of her intent to withdraw as required

       by a local rule, that parents involved in termination proceedings have a right to

       counsel, and that the local rule’s requirement that a withdrawing attorney

       expressly inform her client in writing of her intent to withdraw protects that

       interest, and holding the trial court abused its discretion in granting the

       mother’s attorney’s motion to withdraw her appearance in violation of the local

       rule). Further, A.R. did not have an attorney representing her during the

       adoption proceeding which terminated her parental rights.


                                                    Conclusion

[11]   For the foregoing reasons, we reverse and remand for further proceedings.


[12]   Reversed and remanded.


       Vaidik, C.J., and Bradford, J., concur.



       Court of Appeals of Indiana | Opinion 48A02-1603-AD-709 | December 8, 2016    Page 7 of 7
