Baker v. Marion County Office of Family & Children

Attorneys for Appellants Attorneys for Appellees

Katherine A. Cornelius Stephen A. Carter
Deputy Appellate Public Defender Office of the
Attorney General
Indianapolis, Indiana Indianapolis, Indiana

Ann Sutton
DeDe Connor
Indianapolis, Indiana Marion County Office of
Family & Children

Sheridan, Indiana

Loretta Oleksy
Child Advocates, Inc.
Indianapolis, Indiana

________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 49S02-0209-JV-00473

Sharon Baker and
Daryl Cole Appellant (Defendant below),

v.

Marion County Office of Family
And Children Appellees (Plaintiff below).
And
Child Advocates, Inc.
_______________________________

Appeal from the Marion Superior Court, No. 49D04-9908-JT-1104
The Honorable Diane Marger Moore, Master Commissioner
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0105-
JV-299
_________________________________

June 29, 2004

Shepard, Chief Justice.

Mother and Father lost parental rights during a termination
proceeding. Their appeal centers on the claim that the trial court did not
adequately inquire about their decision to go forward with representation
by the same lawyer. They contend that without an adequate demonstration
that they understood the consequences of joint representation their right
to counsel was violated. They say this right should be judged not by the
test of Strickland v. Washington, so often transplanted from criminal law
to parental termination cases, but rather by a standard that would make it
easier for parents who lose at trial to gain a second one. We conclude
otherwise, seeing the question as one of assuring due process in a setting
that is dramatically different from criminal proceedings.

Facts and Procedural History

On August 8, 1998, Sharon Baker (“Mother”) prematurely delivered a
baby girl whom we will call D.C. Mother used cocaine while pregnant, as
late as days before delivery. D.C. was hospitalized for about three weeks
due to medical concerns, then placed in an emergency shelter, and
eventually in foster care. D.C. has never lived with Mother or her father
Darryl Cole (“Father”).

The Marion County Office of Family and Children (“OFC”) filed a
petition in August 1998 alleging that D.C. was a child in need of services.
Mother and Father admitted in writing and in open court that this was so.
The court ordered both parents to complete certain services, namely a
substance abuse evaluation and a parenting assessment, in order to have
D.C. returned to them. Because such services were ineffective or not
completed at all, the court found that it was in D.C.’s best interests to
remain outside of the home. The court then ordered Mother and Father into
Parental Participation, a social services program obliging both parents to
cooperate with various assessments and services.

OFC’s assigned family case manager Diane Reach began working on
D.C.’s case in August 1998. She explained the court-ordered services to
both parents, and sent letters detailing what was required of them and whom
to contact for appointments. Both parents participated in the parenting
assessment but did not complete it. They received a list of six different
agencies offering parenting classes, but as of the fall 1998 neither parent
reported completing such classes.

Mother and Father did not maintain consistent visitation with D.C.
even though Reach sent them bus tickets and the foster parents offered to
meet Mother and Father halfway when they complained of transportation
problems. At least two different visitation centers established
unsupervised visitation. Still, visits by both parents continued to be
inconsistent. Both Mother and Father had thirteen scheduled visits at one
of the visiting centers but only appeared at four.

Mother was arrested and incarcerated in Tippecanoe County for cocaine
possession, so she missed a scheduled court date in January 1999. Father
also failed to appear. Mother then became an inmate at the Indiana’s
Women’s State Prison, from which she regularly mailed letters to Reach and
letters and cards to Reach for D.C. Originally, the OFC planned to reunite
with Mother and Father, but eventually gave up and petitioned to terminate
the rights of both parents in April 1999.

Mother remained in the Women’s Prison from January through October
1999, where she had visits with D.C. and completed parenting classes. Upon
her release from prison, however, Mother’s visits with D.C. waned. In
October, Reach made new referrals for Mother and Father for drug and
alcohol evaluations and for supervised visits with D.C. Both parents
failed to follow through on the new referrals.

During a drug and alcohol assessment in August 2000, Mother told
addictions counselor Lance Brown that she had used marijuana, alcohol, and
cocaine two to four times a week over the last four years. She also told
Brown she was receiving medication for depression and for epileptic
seizures, and that she suffered from a partial paralysis in her left hand
as a result of a drive-by shooting. Brown recommended treatment for
depression and for cocaine dependency at a mental health center. Brown
testified that he would “have serious concerns with any child being in the
custody of a not treated chemically dependent person.” (R. at 18.) Father
had been scheduled at least twice for similar assessments but did not show
up.

During the termination proceeding, Reach testified based on both
parents’ instability, inconsistent visitations, and continued chemical
addictions it would be harmful to D.C. to be returned to her parents.
Father acknowledged not having a residence of his own. He said that he
would enter a three-month in-patient treatment program for his alcoholism
the week after the termination proceeding. Mother was incarcerated for
probation violations during the termination proceedings. She had not been
employed since 1996 when she was fired because of frequent tardiness. Her
plan to secure income post-jail was to file for social security disability
benefits based on her partially paralyzed left hand. Mother, who had seven
children, had lost parental rights for all but D.C. She said she smoked
$40 to $50 worth of cocaine two days before D.C. was born prematurely. She
admitted that although she loved D.C., she could not be a good parent to
D.C. until she received treatment. She said, “…my baby don’t deserve to
keep on waiting on me. But I don’t want her to be with no one else.” (R.
at 137-38.)

The termination petition was before the court for most of 1999 and all
of 2000. Several lawyers appeared for the parents, though the parents were
frequently absent and one lawyer withdrew because he had no contact with
Mother even after several attempts.

Attorney Thomas D. Strodtman first appeared in the case in September
2000. During the final hearing on January 18, 2001, Strodtman acknowledged
that he would represent both Mother and Father. He stated that both
parties consented to his representing them both and that no conflict
resulted because “[t]here’s no situation here that we see where Mom or Dad
would be blaming each other for the allegations that have been alleged by
the Office of Family and Children.” (R. at 4.) Mother and Father stated
that each agreed to the joint representation.

The trial court terminated parental rights for Mother and Father on
February 23, 2001. The Court of Appeals affirmed, holding that ineffective
assistance of counsel in termination hearing should be resolved on the same
basis as in criminal proceedings and that the joint representation did not
pose a conflict of interest. Baker v. Office of Family and Children, 768
N.E.2d 1008 (Ind. Ct. App. 2002). We granted transfer. Ind. Appellate
Rule 58.

Assistance of Counsel in Termination Proceeding.

As the Supreme Court has explained, the U.S. Constitution does not
require the appointment of counsel in every parental termination
proceeding. The constitutional assurance of due process calls for counsel
where the trial court’s assessment of such factors as the complexity of the
proceeding and the capacity of the uncounseled parent indicates on
appointment is necessary. Lassiter v. Dep’t of Social Services, 452 U.S.
18, 27-32 (1981).

Rather than incur the time and money to litigate eligibility for
public counsel in each case, Indiana has chosen to provide counsel in
termination proceedings to all parents who are indigent. Ind. Code Ann. §§
31-32-4-1 and 31-32-2-5 (West 1998).[1] The Code does not provide for
appointment of counsel to seek post-judgment or collateral relief.

Our Court of Appeals has said that the statutory right to counsel in
termination cases carries the right to performance by counsel measured by
the same test applicable to indigent defense in criminal cases. J.T. v.
Marion County OFC, 740 N.E.2d 1261, 1265 (Ind. Ct. App. 2000).[2] A
substantial number of other jurisdictions have so held.[3] We conclude
that transporting the structure of the criminal law, featuring as it does
the opportunity for repeated re-examination of the original court judgment
through ineffectiveness claims and post-conviction processes, has the
potential for doing serious harm to children whose lives have by definition
already been very difficult.

For one thing, experience in the criminal law with the present system
of direct appeals, post-conviction proceedings, and habeas petitions
demonstrates that with rare exception counsel perform capably and thus
ensure accurate decisions. The correctness of such decisions is at the
heart of the assurance that parties in termination cases will receive due
process. Lassiter, 452 U.S. at 27.

Second, criminal prosecutions and termination proceedings are
substantially different in focus. The resolution of a civil juvenile
proceeding focuses on the best interests of the child, not on guilt or
innocence as in a criminal proceeding. As the Supreme Court said when it
held that the writ of habeas corpus was not available for collateral
attacks on state termination decisions, the parent “simply seeks to
relitigate, through federal habeas, not any liberty interest of her sons,
but the interest in her own parental rights.” Lehman v. Lycoming County
Children’s Servs. Agency, 458 U.S. 502, 511 (1982).

Third, serial relitigation in criminal cases imposes a substantial
burden on victims and witnesses, typically adults. We justify imposing
this burden on them by saying that the complete deprivation of personal
liberty represented by incarceration demands a thorough search for the
innocent. In the context of termination cases, extended litigation imposes
that burden on the most vulnerable people whom the system and such cases
seek to protect: the children. As Justice Powell wrote, “There is little
that can be as detrimental to a child’s sound development as uncertainty
over whether he is to remain in his current ‘home,’ under the care of his
parents or foster parents, especially when such uncertainty is prolonged.”
Lehman, 458 U.S. at 513-14. Justice Joette Katz made a similar observation
when Connecticut’s high court decided not to permit state habeas as a
vehicle for collateral attacks on judgments of termination: “[T]here
exists, as the trial court noted in this case, a ‘frightening possibility
that a habeas petition will negate the permanent placement of a child whose
status had presumably been in limbo for several years.’ Consequently, the
state’s interest as paren patriae militates against allowing the writ.” In
re Jonathan M., 764 A.2d 739, 753 (Conn. 2001) (footnote omitted).

To permit the children to travel from one home to another while
termination proceedings span across the years is “incongruous and contrary
to the federal and state policy of minimizing the ‘foster care drift’ that
has doomed millions of children to interim, multiple or otherwise
impermanent placement.” In re Adoption of A.M.B., 812 A.2d 659, 667 (Pa.
Super. Ct. 2002). Due to the immeasurable damage a child may suffer amidst
the uncertainty that comes with such collateral attacks, it is in the
child’s best interest and overall well being to limit the potential for
years of litigation and instability. “It is undisputed that children
require secure, stable, long-term, continuous relationships with their
parents or foster parents. There is little that can be as detrimental to a
child’s sound development as uncertainty.” Lehman, 458 U.S. at 513.

The current system has already been criticized for putting children
in limbo too long. This problem was sufficiently serious that Congress has
legislated to curb “foster care drift”- the recurring travel of children
from one place to another promoting instability and unhinged relationships.

During the 1970’s, nationwide concern grew regarding the large number
of children who remained out of the homes of their biological parents
throughout their childhood, frequently moved from one foster care
situation to another, thereby reaching majority without belonging to a
permanent family. This phenomenon became known as ‘foster care drift’
and resulted in the enactment by Congress of Public Law 96-272, the
‘Adoption Assistance and Child Welfare Act of 1980,’ codified at 42
U.S.C. §§ 610-679 (1988). One of the important (sic) purposes of this
law was to eliminate foster care drift by requiring states to adopt
statutes to facilitate permanent placement for children as a condition
to receiving federal funding for their foster care and adoption
assistance programs.

In re Adoption/ Guardianship of Nos. J9610436 and J9711031, 796 A.2d 778,
783-84 (Md. 2002).[4] Among other things, the federal act requires the
state to provide a written case plan for each child for whom the state
claims federal foster care maintenance payments. 42 U.S.C. §
671(a)(16).[5] The court then has an essential responsibility to supervise
an appropriate permanency plan intended to thwart foster care drift.

Fourth, the odds of an accurate determination in a termination case
are enhanced by the fact of judicial involvement that is much more
intensive than it is the usual criminal case. As Judge Tamila noted for
the Superior Court of Pennsylvania:
[B]ecause of the doctrine of Parens Patriae and the need to focus on
the best interest of the child, the trial judge, who is the fact
finder, is required to be an attentive and involved participant in
the process. While he must depend upon the litigants to present the
evidence to establish the particular elements or defenses in the
termination case, he is not limited to their presentations, and as in
any custody case, he may require more than they present and direct
further investigation, evaluations or expert testimony to assure him
that the interests of the child and the respective parties are
properly represented. Under the aegis of the court, the role of the
lawyer, while important, does not carry the deleterious impact of
ineffectiveness that may occur in criminal proceedings.

In re adoption of T.M.F., 573 A.2d 1035, 1042-43 (Pa. Super. Ct. 1990).
American public policy holds that children are likely raised best by
their parents. Parental termination is a last resort. Parents have
numerous opportunities to rectify their situations before the parental
termination hearing. A termination hearing results only when attempts to
rectify the conditions that led to removal from the parents have failed
over a prolonged period.

Where parents whose rights were terminated upon trial claim or appeal
that their lawyer underperformed, we deem the focus of the inquiry to be
whether it appears that the parents received a fundamentally fair trial
whose facts demonstrate an accurate determination. The question is not
whether the lawyer might have objected to this or that, but whether the
lawyer’s overall performance was so defective that the appellate court
cannot say with confidence that the conditions leading to the removal of
the children from parental care are unlikely to be remedied and that
termination is in the child’s best interest.[6]

The Instant Claim Fails

Applying the standard to the present case, we find that Mother and
Father’s claim is untenable. Their joint representation did not result in
a conflict of interest, which might well produce a procedurally unfair
setting. Mother and Father preserved the same interests, namely
maintaining parental rights over D.C. As the Court of Appeals stated,
there was no solid evidence showing that their interests were “adverse and
hostile.” 533 N.E.2d at 1200.

Strodtman appropriately questioned and cross-examined witnesses on
behalf of both parents and he also cross-examined both Mother and Father
when they were called to testify. (Appellee Br. at 7; T.R. at 19, 70, 138,
154, 163.) Strodtman’s prediction that Mother and Father did not have
adverse interests and were not presenting evidence against one another
proved correct. At no time did they blame each other for the allegations
made by the OFC. (Appellee Br. at 10.)

Moreover, the record does not suggest that either parent stood to gain
significantly by separate representation. Both parents were individually
and independently required to complete certain treatments and services to
regain custody of D.C. Each of them was responsible for his or her own
services and neither could gain from the other’s participation or lack
thereof. (Appellee Br. at 9.)

The record does support, alternatively, that both parents neglected to
complete the treatments and services required of them after being afforded
ample opportunities. In fact, both parents admitted that they could not be
good parents to D.C. at that time. Father testified:
Q: … What have you done to prepare for [D.C.] coming to live with you?
A: I just told you. I am staying from here to there. I’m getting
ready to go in-patient. Now I can’t prepare her no place right
now…
Q: So it’s fair to say that you couldn’t have [D.C.] returned to
you right now, isn’t that true?
A: She can still stay in foster care with my mother. But I can’t
have her returned to me right now.”

(T.R. at 66.) Mother said: “I can’t help nobody right now. I’m trying to
help myself … I can’t be that parent to [D.C.] right now until I get help
for me.” (T.R. at 132.)

There is nothing to suggest that representation by a single lawyer led
to a fundamentally unfair hearing.

Conclusion

We affirm the decision of the trial court.

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., not participating.
-----------------------
[1] Indiana Code Annotated §§ 31-32-2-5 and 31-32-4-1 entitle a parent to
receive representative counsel. Section 31-32-4-1 provides in part:
Sec. 1. The following persons are entitled to be represented by
counsel:
…
(2) A parent, in a proceeding to terminate the parent-child
relationship, as provided by IC 31-32-2-5.
Indiana Code Annotated § 31-32-2-5 states, “[a] parent is entitled to
representation by counsel in proceedings to terminate the parent-child
relationship.

Indiana Code Annotated § 31-6-5-3(7) originally governed this entitlement.
It said in relevant part that the trial court would inform the parents in
involuntary termination of their right to be represented by counsel and
their right to appointed counsel if necessary. (The statue was repealed in
1997, and this proposition is currently governed by Ind. Code Ann. § 31-32-
4-1 (right to counsel) and Ind. Code Ann. § 31-32-4-3 (right to appointed
counsel)).

[2] Strickland v. Washington, 466 U.S. 668 (1984), established legal
principles to govern ineffective assistance of counsel in criminal
proceedings. It sets forth a two-part test where the petitioner must show
that 1) counsel’s actions fell below the range of reasonable performance,
and 2) the error was prejudicial.

[3] See e.g. In re Stephen, 514 N.E.2d 1087 (Mass. 1987); State ex. rel.
V.M.R., 768 P.2d 1268 (Colo. Ct. App. 1989); In re Simon, 431 N.W.2d 71
(Mich. Ct. App. 1988); Jones v. Lucan Cty. Chidren Svcs. Bd., 546 N.E.2d
471 (Ohio Ct. App. 1988) (each applies the criminal IAC standard which
examines whether the defendant was likely deprived of an otherwise
available substantial defense.) Other jurisdictions have reached diverse
decisions. See State ex. rel. Juvenile Dept. of Multhnomah County v.
Geist, 796 P.2d 1193 (Ore. 1990) (addresses whether the proceeding was
fundamentally fair); In re interest of J.C., Jr., 781 S.W.2d 226 (Mo. Ct.
App. 1989) (whether the attorney was effective in providing his client with
a meaningful hearing based on the record.); In re Adoption of T.M.F., 573
A.2d 1035, 1044 (Pa. Super. Ct. 1990) (fundamental fairness: “whether on
the whole the parties received a fair hearing, the proof supports the
decree by the standard of clear and convincing evidence, and upon review.
Any failure of [counsel’s] stewardship was the cause of a decree of
termination.”); In re Moseley, 660 P.2d 315 (Wash. Ct. App. 1983) (whether
it appears from the record that attorney was not effective in providing a
meaningful hearing)

[4] See In re Priser, No. 19861, 2004 WL 541124 at *6 (Ohio Ct. App. March
19, 2004) (“Such provisions and the limitations placed upon the court’s
authority to place a child in long term foster care… are designed to insure
that a child does not languish, forgotten, in custodial limbo for long
periods of time without permanency.”)

[5] The act requires:
[T]he case plan must include a description of the home or institution
into which the child is placed, a discussion of the appropriateness of
the placement, and a description of the services provided to the
parents, child and foster parents to facilitate return of the child to
his or her own home or to establish another permanent placement for
the child. 42 U.S.C. § 675(1). The state must also implement a case
review system that provides for administrative review of the case plan
at least every six months and judicial review no later than eighteen
months after the placement and periodically thereafter. 42 U.S.C. §
675(5)(B) and (C). The purpose of the judicial review is to
‘determine the future status of the child’ including whether the child
should be returned to its biological parents, continued in foster care
for a specified period, placed for adoption, or because of the child’s
special needs or circumstances, continued in foster care on a long
term basis. 42 U.S.C. § 675(5)(C).
In re Adoption/ Guardianship Nos. J9610436 and J9711031, 796 A.2d 778, 784
(Md. 2002)

[6] We adopted a similar approach to claims that post-conviction lawyers
performed badly. Rejecting application of Strickland v. Washington to such
claims, we held that if counsel in fact appeared and represented the
petitioner in a procedurally fair setting which resulted in a judgment of
the court, post-conviction relief is not warranted. Baum v. State, 533
N.E.2d 1200 (Ind. 1989).