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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. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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