J.C. v. R.C. (mem. dec.)

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
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 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.

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 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

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 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

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 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

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 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.

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