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COA: Mother denied right to counsel in adoption proceeding

March 16, 2017

The Indiana Court of Appeals has reversed a Johnson County adoption after finding the mother was denied due process when the adoption court found that she had waived her right to counsel.

After S.R. gave birth to a child, C.J., a paternity court awarded legal and physical custody of the child to E.J., the father, and ordered S.R. to pay $25 a week in child support. S.R. was also ordered to complete a drug test to increase her parenting time, but she failed to successfully pass the drug screen.

S.R. then stopped visiting C.J. after E.J.’s new girlfriend, M.J., and her daughter moved in with E.J. in the summer of 2012. E.J. and M.J. were married in January 2013, and M.J. was appointed as C.J.’s temporary guardian when E.J. was deployed to Afghanistan.

When M.J. filed to adopt C.J. in 2014, she alleged S.R.’s consent to the adoption was not necessary. M.J. and E.J. were unaware of S.R.’s location at that time, and it was not until three months after the petition was filed that S.R. was served with notice.

Meanwhile, S.R. was incarcerated, and after her release filed for a modification of her parenting time. The paternity court ultimately found that it would be in C.J.’s best interest for the mother to resume parenting time with a 20-week phase-in period.

S.R. was not notified of the adoption petition until after the paternity court order, so she did not file her objection until November 2014. During a hearing, S.R. requested she be appointed counsel, but the trial court found that she had sufficient income to pay for an attorney and, thus, had made a “voluntary choice” to proceed without counsel. However, after M.J. complained the court seemed to be acting as an advocate for the mother, the court appointed counsel for S.R.

The adoption court ultimately found that S.R.’s consent to the adoption was not necessary because she had failed to communicate with the child for at least one year. The court then entered an adoption decree, finding that allowing M.J. to adopt C.J. was in the child’s best interests, thus terminating S.R.’s parental rights.

The mother appealed in S.R. v. M.J., 41A01-1608-AD-2007, alleging the adoption court had committed reversible error by initially failing to appoint an attorney for her. The Indiana Court of Appeals agreed Thursday in an opinion reversing the adoption decree.

Judge Patricia Riley, writing for the panel, said it was “clear that the proceedings concerning Mother’s consent, including the time that Mother was not represented, ‘flowed directly’ into the adoption court’s ultimate decision to terminate Mother’s parental rights through adoption.” Further, Riley wrote the appellate panel disagreed with the contention that S.R. had made a “voluntary choice” to proceed without counsel because she made it clear that she would have preferred representation over proceeding pro se.

“Here, ‘nothing on the record demonstrates that the (adoption) court did anything to impress upon (Mother) the serious consequences she faced if she represented (herself),’” Riley wrote. “Accordingly, because we find that Mother has established a prima facie case that she was deprived of an essential right in violation of due process, we must reverse the adoption court’s adoption decree.”

The case was remanded for a new hearing on the issue of whether S.R.’s consent is required for the adoption, as long as she is given the right to retain or be appointed counsel
 

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