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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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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