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COA reverses termination over rule violation

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The Indiana Court of Appeals split today in its decision to reverse the termination of a mother's parental rights. The majority found the trial court abused its discretion in allowing the mother's trial counsel to withdraw her appearance under a local court rule.

In K.S. v. Marion County Department of Child Services and Child Advocates Inc., No. 49A02-0905-JV-384, mother K.S. claimed the trial court shouldn't have let her attorney withdraw on the date of the final hearing regarding K.S.'s rights to her daughter, A.S. The mother failed to participate in required counseling and classes and failed to appear at the termination hearings. K.S.'s attorney had sporadic contact with her and was unable to reach her by phone. K.S. had moved out of the state and her attorney was only able to reach her by e-mail. The attorney received an e-mail from K.S. asking what happened after she failed to appear at a previous hearing. In her reply, the attorney asked what K.S.'s intentions were and whether she'd be at the final hearing. The attorney also informed K.S. that she wouldn't be able to adequately represent her if K.S. didn't communicate or appear. The attorney never heard back from K.S.

The trial court granted the attorney's motion to withdraw under a Marion Circuit and Superior Court Civil Division rule. Three days later, K.S.'s parental rights were terminated.

Judges Edward Najam and Michael Barnes concluded the trial court abused its discretion in letting the attorney withdraw because she failed to provide written notice to her client or the court at least 10 days before she intended to withdraw.

The judges interpreted the local rule to mean that the good cause exception only applies to the requirement that the attorney's written letter of intent be filed with the court at least 10 days prior to trial, and the other obligations of the local rule imposed on the attorney must still be considered. DCS argued the phrase "or upon good cause shown" would allow the attorney to withdraw even without providing the written notice because she had good cause.

The attorney's e-mail to K.S. didn't constitute the written notice, nor did she file anything with the trial court. K.S.'s rights were prejudiced by the noncompliance with the local rule, wrote Judge Najam, so the majority reversed the trial court, vacated the termination order, and remanded for further proceedings.

"If Mother's attorney complies with the local rule and Mother again fails to appear in person or fails to take the steps necessary to obtain new counsel within a reasonable time, the trial court may reinstate the termination order vacated by this decision," he wrote.

Judge James Kirsch dissented, arguing K.S. put her attorney and the trial court in an untenable position. The attorney couldn't give 10 days notice of her intent to withdraw because she didn't have that intent until K.S. failed to appear at the hearing. Under these circumstances, good cause was shown for not filing the letter.

"Had the trial court denied the request to withdraw and continued with the hearing, the attorney would have sat there as a potted plant, and the result would have been exactly the same as it is now - Mother's parental rights would have been terminated," he wrote.

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