Opinion
24A-JC-20
08-30-2024
In the Matter of Ja'S.S., Jay.S., and P.S., Minor Children Alleged to be Children in Need of Services; v. Indiana Department of Child Services, Appellee-Petitioner R.S. (Mother), Appellant-Respondent and Kids' Voice of Indiana, Appellee-Guardian Ad Litem
ATTORNEYS FOR APPELLANT Anna Onaitis Holden Zionsville, Indiana Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE - INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Attorney General of Indiana Monika prekopa Talbot Deputy Attorney General Madison Crawford Certified Legal Intern Indianapolis, Indiana ATTORNEY FOR APPELLEE - KIDS' VOICE OF INDIANA Katherine Meger Kelsey Kids' Voice of Indiana Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Geoffrey A. Gaither, Judge The Honorable Roseanne T. Ang, Magistrate Trial Court Cause Nos. 49D09-2306-JC-4891, 49D09-2306-JC-4892, 49D09-2306-JC-4893
ATTORNEYS FOR APPELLANT
Anna Onaitis Holden
Zionsville, Indiana
Talisha R. Griffin
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE - INDIANA DEPARTMENT OF CHILD SERVICES
Theodore E. Rokita
Attorney General of Indiana
Monika prekopa Talbot
Deputy Attorney General
Madison Crawford
Certified Legal Intern
Indianapolis, Indiana
ATTORNEY FOR APPELLEE - KIDS' VOICE OF INDIANA
Katherine Meger Kelsey
Kids' Voice of Indiana
Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] The trial court entered an order finding that Ja'S.S., Jay.S., and P.S. (collectively "the Children") were children in need of services ("CHINS"). The Children's mother, R.S. ("Mother"), appeals and argues that the trial court violated Mother's due process rights by failing to advise her of her right to counsel at a pretrial hearing and failing to appoint her counsel until after the Children were found to be CHINS. Because Mother waived rights by repeatedly failing to appear at pretrial hearings, we affirm.
Issue
[¶2] Mother presents one issue for our review: whether the trial court violated Mother's due process rights by failing to advise Mother of her right to counsel at a pretrial hearing and failing to appoint her counsel until after the CHINS adjudication.
Facts
[¶3] Mother has four children, three of whom are involved here: Ja'S.S. (born in July 2014); Jay.S (born in June 2016); and P.S. (born in March 2021). Mother has struggled with homelessness since 2015 and has had prior interactions with the Indiana Department of Child Services ("DCS").
The Children have three different fathers, none of whom are active parties in this appeal.
[¶4] On June 12, 2023, DCS filed a petition alleging that the Children were CHINS due to Mother's housing insecurity, current homelessness, and inability to meet the needs of the Children. The petition also alleged that Mother had entered into a safety plan with DCS; Mother agreed to stay with her mother ("Grandmother") while working with Community Partners to find housing. Instead, on May 26, 2023, Mother left Grandmother's home with the Children and slept in her car. Mother later planned for the Children to stay with relatives, but failed to implement this plan; instead, she attempted to leave the Children with Grandmother's mother "without an adequate plan for shelter for herself and her children for the night." Appellant's App. Vol. II p. 34. The Petition also alleged that, as a result of Mother's issues with homelessness, she had several other contacts with DCS in the past. DCS has offered Mother services in a prior CHINS action, but Mother continued to struggle with homelessness.
[¶5] The trial court held an initial hearing on the CHINS petition the same day it was filed. Mother refused to meet with DCS personnel and failed to appear at the hearing. The trial court authorized the placement of the Children in relative care and set another initial hearing for June 26, 2023. At the June 26, 2023, initial hearing, Mother again failed to appear. The trial court held another initial hearing on July 24, 2023. Mother appeared, but she had not received a copy of the summons. The trial court, therefore, rescheduled the hearing so that Mother could be served with the summons, the petition, and the document advising her of her rights. That same day, Mother met with DCS Family Case Manager Christina Milton ("FCM Milton"), and Mother reviewed and signed the Summons and Notice of Rights. Notably, the Summons and Notice of Rights informed Mother that "[y]ou may hire your own attorney to represent you in this case; or you may also request a court appointed attorney if you cannot afford an attorney." Id. at 96.
[¶6] On August 14, 2023, the trial court held its fourth attempt at an initial hearing. Mother yet again failed to appear. DCS's counsel requested a continuance,and the trial court scheduled a fifth and final initial hearing for September 11, 2023. At the September 11 hearing, Mother again failed to appear. DCS informed the trial court that Mother had attended one supervised visit with the Children and participated in home-based case management and therapy. Mother, however, had informed DCS that she no longer wished to participate in home-based services. DCS, therefore, requested a default hearing. The trial court scheduled a default hearing on November 13, 2023.
It is also unclear from the record why DCS's counsel requested a continuance.
[¶7] DCS published notice of the default hearing in the Indianapolis Star newspaper, on August 23, August 30, and September 6, 2023. These notices were published in both the print and website versions of the newspaper. On November 13, the trial court held the hearing on DCS's motion for default. Again, Mother failed to appear. FCM Milton testified about DCS's efforts to assist Mother and her failure and unwillingness to participate in services. At the end of the hearing, the trial court found all three Children to be CHINS and set the matter for a dispositional hearing on November 27, 2023.
[¶8] At the November 27, 2023 dispositional hearing, Mother appeared in person. The trial court asked Mother if she would like to be represented by an attorney. Mother indicated that she did, and the trial court appointed a public defender. The trial court obtained Mother's contact information and provided her with the information necessary to contact the public defender's office. An attorney from the public defender's office filed an appearance on Mother's behalf that same day. The trial court then reset the dispositional hearing for December 11, 2023.
[¶9] As scheduled, the trial court held a dispositional hearing on December 11, 2023. Mother's attorney appeared, but Mother, yet again, failed to appear. Mother's attorney advised the trial court that she had been unable to contact Mother. Mother's attorney also asked that the trial court continue the hearing and objected to the entry of a dispositional order in Mother's absence. The trial court, however, accepted DCS's recommendations and entered a dispositional order requiring Mother to participate in parental education classes, home-based case management, and home-based therapy. Mother now appeals.
Discussion and Decision
[¶10] Mother claims that the trial court violated her due process rights by failing to advise Mother of her right to counsel at a pretrial hearing and by failing to appoint her counsel prior to the CHINS dispositional hearing.
[¶11] Indiana Code Section 31-34-4-6 provides:
(a) [DCS] shall submit written information to a parent, custodian, or guardian of a child who is alleged to be abused or neglected regarding the following legal rights of the parent, custodian, or guardian:
(1) The right to have a detention hearing held by a court within forty-eight (48) hours after the child's removal from the home and to request return of the child at the hearing.
(2) The right to:
(A) be represented by an attorney;
(B) cross examine witnesses; and
(C) present evidence on the parent's, custodian's, or guardian's own behalf;
at each court proceeding on a petition alleging that the child is a child in need of services. The parent, guardian, or custodian has
the right to be represented by a court appointed attorney under clause (A) upon the request of the parent, guardian, or custodian if the court finds that the parent, guardian, or custodian does not have sufficient financial means for obtaining representation as described in IC 34-10-1.See also In re G.P., 4 N.E.3d 1158, 1162 (Ind. 2014) (citing I.C. § 31-34-4-6). It is, therefore, indisputable that Mother had a statutory right to counsel. Still, we have no hesitation in concluding that Mother waived her right to counsel by her repeated failures to appear.
[¶12] Mother's failure to appear at the first initial hearing did not forever waive her right to counsel. See Jackson v. State, 868 N.E.2d 494, 499 (Ind. 2007) (holding that a criminal defendant's absence from trial does not, by itself, constitute a knowing waiver of the right to counsel). But Mother's repeated failure to appear-even after her right to counsel was explained to her-acted as a knowing, voluntary, and intelligent waiver of her right to counsel. See id. (holding that a defendant's repeated disregard of scheduled hearings and failure to appear can serve as a knowing, voluntary, and intelligent waiver of the right to counsel); cf. In re A.B., 922 N.E.2d 740, 745 (Ind.Ct.App. 2010) (noting that trial courts may presume a parent knowingly and voluntarily waived the right to be present during termination hearing upon a showing that the parent was properly notified of the scheduled hearing date but failed to appear).
[¶13] Moreover, the trial court here did appoint pauper counsel for Mother when Mother finally appeared and requested counsel at the dispositional hearing. Mother complains that this occurred only after the trial court had adjudicated the Children to be CHINS. But Mother was advised of her right to counsel, including court-appointed counsel, after the July 24, 2023 initial hearing when she signed the summons and notice of rights. Rather than assert her right to counsel, Mother failed to appear at the next two scheduled initial hearings. At that point, the DCS published notice of the CHINS fact-finding hearing in the newspaper. Still, Mother did not appear. The trial court then found the Children to be CHINS.
[¶14] Mother appeared at the November 27, 2023 dispositional hearing, at which she requested court-appointed counsel. The trial court immediately appointed counsel to represent Mother and rescheduled the dispositional hearing. Mother yet again failed to appear-for the sixth time in this case-at the dispositional hearing on December 11, 2023. And her court-appointed attorney reported that she had been unable to contact Mother.
[¶15] We find Mother's citation to G.P., 4 N.E.3d 1158, to be unavailing. In that case, the mother, J.A., requested court-appointed counsel. The trial court found J.A. to be entitled to court-appointed counsel, but it did not appoint her counsel. When J.A. appeared at the next hearing without counsel, the trial court still did nothing. J.A. then failed to appear at a permanency hearing. When DCS filed a petition to terminate J.A.'s parental rights, J.A. failed to appear at three scheduled initial hearings. DCS then requested a default hearing. Before the default hearing could be held, J.A. filed a letter requesting the appointment of counsel. Only then did the trial court appoint counsel to represent J.A. J.A.'s counsel subsequently moved to dismiss the petition on grounds that J.A.'s due process rights had been violated. The trial court denied this motion and, following a termination hearing, terminated J.A.'s parental rights.
[¶16] On appeal, our Supreme Court held that the trial court's failure to honor J.A.'s statutory right to counsel denied her due process. Id. at 1166. Here, however, when Mother requested a court-appointed attorney, the trial court did appoint counsel to represent her. This counsel appeared at the continued dispositional hearing, but Mother, yet again, failed to appear. Thus, G.P. is readily distinguishable.
[¶17] We find this case to be more similar to X.S. v. Indiana Department of Child Services, 117 N.E.3d 601 (Ind.Ct.App. 2018). In X.S., the father was incarcerated. DCS informed the father by telephone, by letter, and by summons of his right to counsel in a termination of parental rights proceeding. The father, however, made no request for counsel, to be transported to attend the hearing, or to in any way participate in the hearings. When his parental rights were terminated, the father appealed and claimed that he had been deprived of his rights to due process. On appeal, we noted that the father had been repeatedly informed of his right to counsel and that, if he wanted counsel, he simply needed to make a telephone call. Id. at 608. "We d[id] not believe this [wa]s too much to ask of a parent in a termination proceeding." Id.
Judge Mathias dissented and concluded that the father was not provided with notice that meets the requirements of due process and did not knowingly and voluntarily waive his right to counsel. See id. at 609 (Mathias, J., dissenting).
[¶18] Similarly, here, all Mother had to do was appear and assert her right to counsel. This is not too much to ask in a CHINS proceeding. Moreover, when Mother did request counsel, the trial court promptly appointed counsel to represent her. Instead of taking advantage of this, Mother failed to appear at the rescheduled dispositional hearing and did not establish contact with her appointed counsel.
Conclusion
[¶19] Mother signed an advisement of rights informing her of her right to court-appointed counsel. Rather than requesting counsel at her first opportunity, Mother repeatedly failed to appear. When Mother finally did appear and request counsel, the trial court promptly appointed counsel to represent her and continued the scheduled hearing. But instead of taking advantage of this right, Mother again failed to appear and failed to contact her court-appointed attorney. Mother's attempt to place the blame for all of this on the trial court is misplaced. We, therefore, reject Mother's argument that the trial court deprived her of due process by failing to automatically appoint Mother counsel prior to her request for appointed counsel. Accordingly, we affirm the trial court's judgment.
[¶20] Affirmed.
Crone, J., and Bradford, J., concur.