ILNews

Lawyers can't appeal termination without parent's authorization

Back to TopE-mailPrintBookmark and Share

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.”
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT