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Tuesday, September 21, 2010

Ind. Decisions - Supreme Court issues second opinion today

In Term. of Parent-Child Rel. of I.B.; M.L. v. IDCS, a 10-page, 5-0 opinion, Justice Sullivan writes:

Following termination of an absent mother's parental rights, the juvenile court declined to appoint counsel to appeal the termination. Indiana law requires court-appointed counsel for an indigent parent who appeals the termination of his or her parental rights – but only where the parent himself or herself authorizes the appeal. * * *

As discussed above, the Indiana Code provides parents the right to representation by counsel in termination proceedings, including appeals. This case presents the dilemma counsel faces where, after a client's parental rights have been terminated, the client does not cooperate or communicate his or her instructions with respect to an appeal to the attorney. In an ordinary civil case in tort or contract, an attorney cannot proceed without a client's instruction. In the words of the United States Court of Appeals for the Second Circuit: “[a]n attorney's only ethical obligation is to serve his client loyally and competently . . . . Hence a client's decision not to pursue an appeal is one a lawyer must abide by because such a decision is exclusively that of the client.” Soliman v. Ebasco Servs. Inc., 822 F.2d 320, 323 (2d Cir. 1987) (citing Model Code of Prof'l Responsibility, EC7-7, EC7-8, EC7-9 (as amended, 1980)), cert. denied, 484 U.S. 1020 (1988). But should that be the case in termination cases where so much is at stake for both parent and child? * * *

An appeal of a decision to terminate parental rights, by its very nature, causes delay and prolongs the process of uncertainty for a child. To sanction an appeal as a matter of course would not further the objective of bringing permanency to the child through the prompt resolution of termination proceedings. As such, the policy objective of permanency is consonant with the lawyer's ethical obligations.

If a parent is present at the termination hearing and contests the termination of parental rights order, the parent is entitled to appeal the termination order with the assistance of court-appointed counsel as discussed in part I, supra – although the parent can certainly waive the right to appeal. When the parent does not appear at the termination of parental rights trial, is not present when the termination of parental rights order is issued, or has not had contact with counsel, the parent's trial lawyer has an obligation to contact the client and inform the client of the result of the termination proceeding. See Ind. Prof'l Conduct R. 1.3 and 1.4. At this point, the attorney can receive instructions with respect to an appeal. See id. at 1.2.

In the event that the lawyer does not know the whereabouts of the parent, the lawyer must use due diligence to locate the client during the time period between the entry of the termination of parental rights order and the time that the notice of appeal is due. If a lawyer is unable to locate the client despite due diligence or if the lawyer cannot get clear instructions from the client with respect to an appeal, the lawyer should not file a notice of appeal. * * *

In this case, Mother failed to appear at the termination of parental rights hearing and the hearing regarding the appointment of appellate counsel following the decision to terminate her parental rights. Her whereabouts were unknown. She had not been in contact with her lawyer or the State for many months before it filed the termination action. Due to Mother's own inaction, her counsel could not effectively or ethically represent that she wanted to file an appeal. “[A] child's right to a stable home cannot be put on hold interminably because a parent is absent from the courtroom and has failed to contact his or her attorney.” In re Dependency of C.R.B., 814 P.2d 1197, 1202 (Wash. Ct. App. 1991) (citation omitted). Her lawyer asked the court to appoint appellate counsel to appeal the decision. We find that our rules of professional conduct, guidance from other jurisdictions, and the principal policy considerations animating termination of parental rights adjudications all dictate that, on the facts of this case, the lawyer had no basis to file an appeal and the trial court was correct not to appoint appellate counsel for that purpose.

Conclusion. Parents have a statutory right to appellate counsel to appeal an order terminating their parental rights. This right to appeal can be waived. And it is improper for a parent's trial lawyer, after the lawyer has exercised due diligence to determine the parent's wishes with respect to an appeal, to pursue an appeal without the parent's authorization.

The judgment of the juvenile court denying appointment of appellate counsel to represent Mother in an appeal of the involuntary termination of the parent-child relationship order is affirmed.

Posted by Marcia Oddi on September 21, 2010 05:05 PM
Posted to Ind. Sup.Ct. Decisions