      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                               Jul 30 2019, 8:39 am
      the defense of res judicata, collateral                                            CLERK
      estoppel, or the law of the case.                                              Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




      ATTORNEY FOR APPELLANT
      Nathaniel S. Connor
      Jordan Law, LLC
      Richmond, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      J.C.,                                                    July 30, 2019
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-AD-521
              v.                                               Appeal from the Fayette Circuit
                                                               Court
      R.C.,                                                    The Honorable Hubert Branstetter,
      Appellee-Petitioner.                                     Jr., Judge
                                                               Trial Court Cause No.
                                                               21C01-1810-AD-331



      Mathias, Judge.


[1]   J.C. (“Father”) appeals the trial court’s decree of adoption of his biological

      child, L.C. (“Child”), to R.C. (“Stepfather”). Father raises one issue on appeal,

      which we restate as whether the trial court violated Father’s due process rights

      when it failed to advise Father of his right to counsel and his right to appointed
      Court of Appeals of Indiana | Memorandum Decision 19A-AD-521 | July 30, 2019                           Page 1 of 6
      counsel should he be found indigent. Finding that Father’s due process rights

      were violated, we reverse and remand.


                                       Facts and Procedural History

[2]   L.C. was born on September 22, 2010 to K.C. (“Mother”) and Father. Mother

      began seeing Stepfather in 2013, and thereafter, Mother’s relationship with

      Stepfather was off and on. On May 25, 2018, Mother married Stepfather after

      an extended break-up of seven to ten months. Stepfather has been providing

      care for L.C. as if he were the child’s father since 2013. Even during the break-

      up with L.C.’s mother, Stepfather remained involved in L.C.’s life, calling her

      on the telephone and having her spend the night at his house on weekends.

[3]   On October 3, 2018, Stepfather filed a petition to adopt L.C., and a notice of

      adoption was issued to Father. Mother consented to the adoption. Stepfather

      asserted that the biological father’s consent was not required pursuant to Ind.

      Code section 31-19-9-8(a)(2). On November 26, 2018, Father filed his objection

      to the adoption.1 On January 3, 2019, the trial court held a hearing on

      Stepfather’s petition. Stepfather appeared with counsel, and Father appeared

      pro se. At the hearing, Father was not advised of his right to counsel or

      appointed counsel if found indigent. Father testified at the hearing that he did

      not think it was a good idea to correspond or communicate with the child while

      incarcerated. Tr. p. 21. Father testified it was better for the child to not be




      1
          Father testified that he himself did not write the objection. Rather, his girlfriend wrote the objection.

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-521 | July 30, 2019                             Page 2 of 6
      around him while he was in jail. Id. Father’s last contact with L.C. was in

      August of 2017. At that time, Father was under the influence of illegal drugs,

      and Father testified that he has had problems with illegal drugs since 2015. Id.

      at 22.

[4]   On January 9, 2019, counsel entered appearance on behalf of Father. By

      counsel, Father filed a motion to reopen evidence, an objection to the adoption,

      and a motion to enlarge time. The trial court denied Father’s motion to reopen

      evidence but granted an enlargement of time to submit his proposed order. On

      January 28, 2019, Father filed his proposed findings of facts and conclusions of

      law. On January 29, 2019, the trial court found that the consent of Father was

      not needed in L.C.’s adoption and that it would be in L.C.’s best interests to be

      adopted by Stepfather. The trial court entered a decree of adoption, thereby

      terminating Father’s parental rights to L.C. On January 31, 2019, Father filed

      his motion to reconsider the adoption decree. On February 8, 2019, the trial

      court denied the motion. Father now appeals.


                                     Discussion and Decision
[5]   Initially, we observe that Stepfather failed to file an Appellee’s brief, and we

      will not undertake the burden of developing arguments for him. Jenkins v.

      Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Instead, we apply a less

      stringent standard of review and will reverse upon a showing of prima facie

      error, which is error “at first sight, on first appearance, or on the face of

      it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). However, to


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-521 | July 30, 2019    Page 3 of 6
      determine whether reversal is required, we are still obligated to correctly apply

      the law to the facts in the record. Jenkins, 17 N.E.3d at 352.


[6]   Father argues that the trial court violated his due process rights when it failed to

      advise him of his right to counsel and his right to appointed counsel if he was

      found to be indigent. The dispositive question in this case is one related to the

      constitutionality of the trial court’s judgment. We therefore review the trial

      court’s decision de novo. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct.

      App. 2008) (reviewing de novo questions of due process).


[7]   The Fourteenth Amendment of the United States Constitution provides, “No

      State shall ... deprive any person of life, liberty, or property, without due

      process of law[.]” U.S. Const. amend. XIV, § 1. With regard to the due process

      rights of parents facing the possible termination of their parental rights, our

      supreme court has stated:

              It is well established that the involuntary termination of parental
              rights is an extreme measure that is designed to be used as a last
              resort when all other reasonable efforts have failed. Choices
              about marriage, family life, and the upbringing of children are
              among associational rights the United States Supreme Court has
              ranked as of basic importance in our society and are rights
              sheltered by the Fourteenth Amendment against the State's
              unwarranted usurpation, disregard, or disrespect. “If any
              freedom not specifically mentioned in the Bill of Rights enjoys a
              ‘preferred position’ in the law it is most certainly the family.”


              “The Due Process Clause of the U.S. Constitution and the Due
              Course of Law Clause of the Indiana Constitution prohibit state
              action that deprives a person of life, liberty, or property without a

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-521 | July 30, 2019    Page 4 of 6
              fair proceeding.” Parental rights constitute an important interest
              warranting deference and protection, and a termination of that
              interest is a “unique kind of deprivation.” However, children
              have an interest in terminating parental rights that prevent
              adoption and inhibit establishing secure, stable, long-term,
              continuous relationships. 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 C.G., 954 N.E.2d 910, 916–17 (Ind. 2011) (internal citations omitted).


[8]   Here, Father argues that the trial court violated his due process rights by not

      advising him of his right to counsel or appointed counsel to represent him in

      Stepfather’s adoption proceeding. We agree. Ind. Code section 31-32-2-5

      provides that “[a] parent is entitled to representation by counsel in proceedings

      to terminate the parent-child relationship.” And this court had held that a

      party’s right to counsel, afforded by Indiana Code section 31-32-2-5, also

      applies in adoption proceedings where, as here, the petitioner seeks to adopt the

      child over the objection of one of the natural parents. See Taylor v. Scott, 570

      N.E.2d 1333 (Ind. Ct. App. 1991), trans. denied. “Thus, parents whose parental

      rights will be terminated in an adoption proceeding 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.” Matter of Adoption of C.J., 71 N.E.3d 436, 443 (Ind.

      Ct. App. 2017) (internal quotations omitted) (citing In re Adoption of G.W.B., 776

      N.E.2d 952, 954 (Ind. Ct. App. 2002)) (quoting, Taylor, 570 N.E.2d at 1335). It

      is clear, then, that Father was entitled to representation by counsel in the


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-521 | July 30, 2019   Page 5 of 6
      adoption proceeding. There is nothing in the record before us that shows that

      the trial court advised Father of his right to counsel or inquired into Father’s

      ability to retain counsel.


                                                Conclusion
[9]   We conclude that the trial court committed reversible error by failing to advise

      Father of his right to counsel and his right to appointed counsel should he be

      found indigent. We reverse and remand for the trial court to determine whether

      Father is indigent and, if so, to appoint counsel to represent him at a new

      adoption hearing.


      May, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-AD-521 | July 30, 2019   Page 6 of 6
