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 Apr 19 2017, 9:32 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Special Assistant to the State Public Attorney General of Indiana
Defender
Abigail R. Recker
Wieneke Law Office, LLC Deputy Attorney General
Brooklyn, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.A. (Minor April 19, 2017
Child) Child in Need of Services, Court of Appeals Case No.
52A02-1611-JC-2684
C.A.,
Appeal from the Miami Circuit
Appellant-Respondent, Court
v. The Honorable Timothy P. Spahr,
Judge
Indiana Department of Child Trial Court Cause No.
Services, 52C01-1603-JC-34
Appellee-Petitioner.
Bailey, Judge.
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Case Summary
[1] C.A. (“Mother”) appeals the adjudication of her daughter, A.A. (“Child”), as a
Child in Need of Services (“CHINS”). Mother raises two related issues, which
we consolidate and restate as whether Mother’s due process rights were violated
when the trial court allowed Mother’s counsel to orally withdraw at the fact-
finding hearing, with no notice, and conducted the hearing in Mother’s
absence.
[2] We reverse and remand.
Facts and Procedural History
[3] Shortly after Mother gave birth to Child, the Department of Child Services
(“DCS”) removed Child from Mother’s care. On March 22, 2016, DCS filed a
CHINS petition, alleging that Mother was in a violent relationship with M.R.,
and that the relationship posed a threat to Child. Mother was appointed a
public defender, and counsel entered an appearance on Mother’s behalf.
[4] A fact-finding hearing was initially scheduled for May 18, 2016, but was
postponed several times due to continuances. The hearing was eventually
scheduled for August 17, 2016. On July 6, 2016, Mother made several pro se
filings, including a “Motion to Continue Pro Se” in which she alleged that her
appointed counsel was “not representing [her] properly,” kept allowing
continuances, and did not return phone calls. (App. at 100.) The trial court
entered an order striking Mother’s pro se filings, and a status hearing was set for
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August 3, 2016 regarding Mother’s dissatisfaction with counsel. Mother did
not attend the hearing, and Mother remained represented by counsel.
[5] On August 17, 2016, the fact-finding hearing was held, and Mother was absent.
At the beginning of the hearing, the trial court asked Mother’s counsel about
contact between them, and counsel responded:
I’ve had no contact with [Mother] other than the one time that
she was in Court. She failed to appear for her appointment,
we’ve tried to call her on three phone lines, none of which have
voicemail set up. One of them’s not accepting calls, at least, I
sent her a letter after the last hearing indicating she if wished [sic]
to discuss the case[,] she would need to set an appointment
because her phone wasn’t set up. I’ve never had any . . . contact
from (inaudible).
(Tr. at 4.) Counsel also confirmed that he sent the date of the fact-finding
hearing to Mother’s last-known address. The trial court inquired about DCS’s
contact with Mother, and then said it would proceed with the fact-finding
hearing. Mother’s counsel then orally moved to withdraw, and the trial court
granted the motion. DCS then presented evidence, after which the trial court
adjudicated Child a CHINS.
[6] The trial court held a dispositional hearing on September 21, 2016, at which
Mother appeared pro se. Mother explained that she did not attend the status
hearing or the fact-finding hearing because, at those times, she had a body
attachment warrant in a separate custody case. At the conclusion of the
hearing, the trial court said that it was adopting DCS’s recommendations and
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ordering services. The trial court entered its order on October 28, 2016, Mother
was appointed a public defender, and this appeal ensued.
Discussion and Decision
[7] Mother seeks reversal of the CHINS adjudication, contending that her due
process rights were violated when the trial court allowed her attorney to
withdraw at the start of the fact-finding hearing, without notice—which was
contrary to Trial Rule 3.1(H)1—and then conducted the hearing in her absence.
[8] Parents at all stages of CHINS proceedings have due process protections, and
these protections are “vital” because every CHINS proceeding has the potential
to interfere with the rights of parents in the upbringing of their children. In re
G.P., 4 N.E.3d 1158, 1165 (Ind. 2014). “[T]he requirement of due process—
whether set as a minimum floor by the Due Process Clause of the Fourteenth
Amendment or established as something higher by legislative enactment”—
embodies a requirement of “fundamental fairness.” Id. at 1168. Due process
“requires ‘the opportunity to be heard at a meaningful time and in a meaningful
manner.’” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976)).
1
Indiana Trial Rule 3.1(H) provides, inter alia, that “[a]n attorney representing a party may file a motion to
withdraw representation of the party upon a showing that the attorney has sent written notice of intent to
withdraw to the party at least ten (10) days before filing a motion to withdraw representation.” The instant
motion to withdraw, made orally with no notice, was plainly contrary to this rule.
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[9] The process due in a CHINS proceeding often turns on the balancing of three
Mathews factors: (1) the private interests affected by the proceeding; (2) the risk
of error created by the State’s chosen procedure; and (3) the countervailing
governmental interest supporting use of the challenged procedure. See id.
Mother declines to apply the Mathews factors. Instead, she directs us to In re
G.P., in which our supreme court noted that, “Mathews analysis aside, it is also
true that ‘if the State imparts a due process right, then it must give that right.’”
4 N.E.3d at 1166 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). That is,
denial of a statutory entitlement “would constitute a failure to afford [a] parent
the process to which the General Assembly says he or she is due.” Id.
[10] Mother points out that parents in CHINS adjudication proceedings have several
statutory entitlements, including the right to cross-examine witnesses and the
right to introduce evidence. See Ind. Code § 31-32-2-3. Mother contends that,
given the circumstances of the fact-hearing, she was effectively deprived of these
State-imparted rights, and thereby denied due process. We agree. Although we
certainly do not condone Mother’s decision not to appear at the fact-finding
hearing, critically, Mother made that decision when she was still represented.
Had Mother known of her attorney’s intention to withdraw, Mother could have
made an informed decision about whether to attend the fact-finding hearing and
exercise her statutory rights as a pro se litigant—or potentially seek new counsel.
Yet, Mother had no notice of counsel’s intentions, and was effectively
prevented from exercising her statutory rights when the trial court conducted
the hearing in her absence. In this regard, the CHINS proceeding was rendered
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fundamentally unfair,2 and Mother was denied due process. Cf. D.A. v. Monroe
Cty. Dep’t of Child Servs., 869 N.E.2d 501, 510-12 (Ind. Ct. App. 2007) (engaging
in a three-factor Mathews analysis and concluding that a parent was denied due
process under similar circumstances). We therefore reverse the CHINS
adjudication and remand for a proper fact-finding hearing.
Conclusion
[11] Mother’s due process rights were violated when the trial court allowed Mother’s
counsel to withdraw, without notice, and conducted the fact-finding hearing in
Mother’s absence.
[12] Reversed and remanded.
Vaidik, C.J., and Robb, J., concur.
2
We are not persuaded by the State’s argument that Mother invited error of this nature because she
expressed dissatisfaction with counsel, by filing the pro se motion that was ultimately stricken, or because she
failed to attend the fact-finding hearing when, to Mother’s knowledge, she was represented by counsel.
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