COA: Court must rule on incarcerated father’s request for counsel

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The Indiana Court of Appeals has reversed the adoption of a child by the maternal grandparents after finding the trial court violated the father’s due process rights when it did not rule on his request for counsel.

M.W. is currently incarcerated in the Kentucky Department of Correction serving a 12-year sentence related to the death of A.W. She died from a lethal dose of pain medication injected by M.W., who is an emergency medical technician. He was attempting to treat her for Crohn’s disease.

Their child, K.W., was placed with her maternal grandmother and step-grandfather in 2009. In 2013, they sought to adopt the child. M.W. filed a pro se appearance and then also requested that counsel be appointed for him, alleging he was indigent and was unable to successfully secure an attorney.

For reasons unclear in the record, the trial court never ruled on father’s request for appointment of counsel and granted the adoption.

I.C. 31-32-2-8 says that a parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship. The grandparents argued that father waived his claim when he filed a pro se appearance and failed to request a hearing on his motion or request counsel at the adoption proceeding.

The COA rejected their argument, citing In re G.P. 4 N.E.3d 1158 (Ind. 2014), which rejected a similar argument made by the grandparents in this case.

“In light of Father’s undisputed allegations in his motion for the appointment of counsel that he was incarcerated, could not afford to hire counsel, had tried without success to secure counsel, and earned twelve to twenty dollars per month while in prison, there is a clear possibility that Father is indigent. Indeed, after Father filed his notice appeal, the Clark County court reporter notified Father by letter that he had been ‘deemed a pauper’ and that no fee was due from him for preparation of the hearing transcript,” Judge Paul Mathias wrote in In Re the Adoption of K.W.: M.W. v. S.L. and T.L., 10A04-1309-AD-469.

“We therefore conclude that the trial court erred by failing to rule on his request for appointed counsel. We reverse and remand for the trial court to determine whether Father is indigent and, if so, to appoint counsel to represent him at a new adoption hearing.”


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