ILNews

Lawyers can't appeal termination without parent's authorization

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The Indiana Supreme Court held Tuesday that although parents have a statutory right to appellate counsel to appeal an order ending their parental rights, a parent’s trial lawyer cannot pursue an appeal without the parent’s authorization.

The justices unanimously affirmed the denial by the juvenile court in appointing appellate counsel to represent mother M.L. in an appeal of the involuntary termination of the parent-child relationship order. M.L.’s son, I.B., was born with drugs in his system and later found to be a child in need of services. M.L.’s mother served as the primary caregiver of I.B. M.L. moved back in with her mother, but often drank and did not consistently participate in required drug screenings and services in order to get her son back.

An attorney was appointed to represent M.L. at a termination hearing, but the attorney and the state couldn’t reach the mother. The juvenile court terminated her parental rights and also denied her court-appointed attorney’s motion for the appointment of appellate counsel. The attorney said he did not wish to do the appeal and that he filed notice because he was obligated under the terms of his contract. The Indiana Court of Appeals affirmed.

In Term. of Parent-Child Rel. of I.B.; M.L. v. IDCS, No. 03S05-1004-JV-218, the justices found that Indiana Code provides parents the right to representation by counsel in termination proceedings, including appeals. They also held that an attorney should not file an appeal when the attorney can’t get in touch with his client and learn whether she wants to appeal.

Justice Frank Sullivan cited several Rules of Professional Conduct that provide general guidance on this issue, including Rule 1.2 and Rule 1.4. He also cited several cases from other jurisdictions that have considered this issue in family law matters.  

“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,” he wrote.

If an attorney’s client is not present at the termination of parental rights hearing, there when the termination order is issued, or hasn’t contacted her counsel, then the trial lawyer has an obligation to contact the client and let her know of the result of the termination proceeding. If the attorney can’t locate the client by using due diligence before the time to file the notice of appeal is due, then the lawyer shouldn’t file the appeal.

“Parents have a statutory right to appellate counsel to appeal an order terminating their parental rights. This right to appeal can be waived,” he wrote. “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.”
 

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  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

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