Attorneys for Appellants Attorneys for Appellees
Katherine A. Cornelius Stephen A. Carter
Deputy Appellate Public Defender Office of the Attorney General
Indianapolis, Indiana Indianapolis, Indiana
Indianapolis, Indiana Marion County Office of Family & Children
Child Advocates, Inc.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0105-JV-299
June 29, 2004
The Marion County Office of Family and Children (OFC) filed a petition in
August 1998 alleging that D.C. was a child in need of services.
Mother and Father admitted in writing and in open court that this was
so. The court ordered both parents to complete certain services, namely a
substance abuse evaluation and a parenting assessment, in order to have D.C. returned
to them. Because such services were ineffective or not completed at all,
the court found that it was in D.C.s best interests to remain outside
of the home. The court then ordered Mother and Father into Parental
Participation, a social services program obliging both parents to cooperate with various assessments
OFCs assigned family case manager Diane Reach began working on D.C.s case in August 1998. She explained the court-ordered services to both parents, and sent letters detailing what was required of them and whom to contact for appointments. Both parents participated in the parenting assessment but did not complete it. They received a list of six different agencies offering parenting classes, but as of the fall 1998 neither parent reported completing such classes.
Mother and Father did not maintain consistent visitation with D.C. even though Reach
sent them bus tickets and the foster parents offered to meet Mother and
Father halfway when they complained of transportation problems. At least two different
visitation centers established unsupervised visitation. Still, visits by both parents continued to
be inconsistent. Both Mother and Father had thirteen scheduled visits at one
of the visiting centers but only appeared at four.
Mother was arrested and incarcerated in Tippecanoe County for cocaine possession, so she
missed a scheduled court date in January 1999. Father also failed to
appear. Mother then became an inmate at the Indianas Womens State Prison,
from which she regularly mailed letters to Reach and letters and cards to
Reach for D.C. Originally, the OFC planned to reunite with Mother and
Father, but eventually gave up and petitioned to terminate the rights of both
parents in April 1999.
Mother remained in the Womens Prison from January through October 1999, where she
had visits with D.C. and completed parenting classes. Upon her release from
prison, however, Mothers visits with D.C. waned. In October, Reach made new
referrals for Mother and Father for drug and alcohol evaluations and for supervised
visits with D.C. Both parents failed to follow through on the new
During a drug and alcohol assessment in August 2000, Mother told addictions counselor
Lance Brown that she had used marijuana, alcohol, and cocaine two to four
times a week over the last four years. She also told Brown
she was receiving medication for depression and for epileptic seizures, and that she
suffered from a partial paralysis in her left hand as a result of
a drive-by shooting. Brown recommended treatment for depression and for cocaine dependency
at a mental health center. Brown testified that he would have serious
concerns with any child being in the custody of a not treated chemically
dependent person. (R. at 18.) Father had been scheduled at least
twice for similar assessments but did not show up.
During the termination proceeding, Reach testified based on both parents instability, inconsistent visitations,
and continued chemical addictions it would be harmful to D.C. to be returned
to her parents. Father acknowledged not having a residence of his own.
He said that he would enter a three-month in-patient treatment program for
his alcoholism the week after the termination proceeding. Mother was incarcerated for
probation violations during the termination proceedings. She had not been employed since
1996 when she was fired because of frequent tardiness. Her plan to
secure income post-jail was to file for social security disability benefits based on
her partially paralyzed left hand. Mother, who had seven children, had lost
parental rights for all but D.C. She said she smoked $40 to
$50 worth of cocaine two days before D.C. was born prematurely. She
admitted that although she loved D.C., she could not be a good parent
to D.C. until she received treatment. She said,
my baby dont deserve
to keep on waiting on me. But I dont want her to
be with no one else. (R. at 137-38.)
The termination petition was before the court for most of 1999 and all
of 2000. Several lawyers appeared for the parents, though the parents were
frequently absent and one lawyer withdrew because he had no contact with Mother
even after several attempts.
Attorney Thomas D. Strodtman first appeared in the case in September 2000.
During the final hearing on January 18, 2001, Strodtman acknowledged that he would
represent both Mother and Father. He stated that both parties consented to
his representing them both and that no conflict resulted because [t]heres no situation
here that we see where Mom or Dad would be blaming each other
for the allegations that have been alleged by the Office of Family and
Children. (R. at 4.) Mother and Father stated that each agreed
to the joint representation.
The trial court terminated parental rights for Mother and Father on February 23,
2001. The Court of Appeals affirmed, holding that ineffective assistance of counsel
in termination hearing should be resolved on the same basis as in criminal
proceedings and that the joint representation did not pose a conflict of interest.
Baker v. Office of Family and Children, 768 N.E.2d 1008 (Ind. Ct.
App. 2002). We granted transfer. Ind. Appellate Rule 58.
Rather than incur the time and money to litigate eligibility for public counsel
in each case, Indiana has chosen to provide counsel in termination proceedings to
all parents who are indigent. Ind. Code Ann. §§ 31-32-4-1 and 31-32-2-5
The Code does not provide for appointment of counsel to
seek post-judgment or collateral relief.
Our Court of Appeals has said that the statutory right to counsel in
termination cases carries the right to performance by counsel measured by the same
test applicable to indigent defense in criminal cases.
J.T. v. Marion County
OFC, 740 N.E.2d 1261, 1265 (Ind. Ct. App. 2000).
A substantial number
of other jurisdictions have so held.
We conclude that transporting the structure
of the criminal law, featuring as it does the opportunity for repeated re-examination
of the original court judgment through ineffectiveness claims and post-conviction processes, has the
potential for doing serious harm to children whose lives have by definition already
been very difficult.
For one thing, experience in the criminal law with the present system of
direct appeals, post-conviction proceedings, and habeas petitions demonstrates that with rare exception counsel
perform capably and thus ensure accurate decisions. The correctness of such decisions
is at the heart of the assurance that parties in termination cases will
receive due process. Lassiter, 452 U.S. at 27.
Second, criminal prosecutions and termination proceedings are substantially different in focus. The
resolution of a civil juvenile proceeding focuses on the best interests of the
child, not on guilt or innocence as in a criminal proceeding. As
the Supreme Court said when it held that the writ of habeas corpus
was not available for collateral attacks on state termination decisions, the parent simply
seeks to relitigate, through federal habeas, not any liberty interest of her sons,
but the interest in her own parental rights.
Lehman v. Lycoming County
Childrens Servs. Agency, 458 U.S. 502, 511 (1982).
Third, serial relitigation in criminal cases imposes a substantial burden on victims and
witnesses, typically adults. We justify imposing this burden on them by saying
that the complete deprivation of personal liberty represented by incarceration demands a thorough
search for the innocent. In the context of termination cases, extended litigation
imposes that burden on the most vulnerable people whom the system and such
cases seek to protect: the children. As Justice Powell wrote, There
is little that can be as detrimental to a childs sound development as
uncertainty over whether he is to remain in his current home, under the
care of his parents or foster parents, especially when such uncertainty is prolonged.
Lehman, 458 U.S. at 513-14. Justice Joette Katz made a similar
observation when Connecticuts high court decided not to permit state habeas as a
vehicle for collateral attacks on judgments of termination: [T]here exists, as the
trial court noted in this case, a frightening possibility that a habeas petition
will negate the permanent placement of a child whose status had presumably been
in limbo for several years. Consequently, the states interest as paren patriae militates
against allowing the writ. In re Jonathan M., 764 A.2d 739, 753
(Conn. 2001) (footnote omitted).
To permit the children to travel from one home to another while termination
proceedings span across the years is incongruous and contrary to the federal and
state policy of minimizing the foster care drift that has doomed millions of
children to interim, multiple or otherwise impermanent placement.
In re Adoption of
A.M.B., 812 A.2d 659, 667 (Pa. Super. Ct. 2002). Due to the
immeasurable damage a child may suffer amidst the uncertainty that comes with such
collateral attacks, it is in the childs best interest and overall well being
to limit the potential for years of litigation and instability. It is
undisputed that children require secure, stable, long-term, continuous relationships with their parents or
foster parents. There is little that can be as detrimental to a
childs sound development as uncertainty. Lehman, 458 U.S. at 513.
The current system has already been criticized for putting children in limbo too
long. This problem was sufficiently serious that Congress has legislated to curb
foster care drift- the recurring travel of children from one place to another
promoting instability and unhinged relationships.
During the 1970s, nationwide concern grew regarding the large number of children who remained out of the homes of their biological parents throughout their childhood, frequently moved from one foster care situation to another, thereby reaching majority without belonging to a permanent family. This phenomenon became known as foster care drift and resulted in the enactment by Congress of Public Law 96-272, the Adoption Assistance and Child Welfare Act of 1980, codified at 42 U.S.C. §§ 610-679 (1988). One of the important (sic) purposes of this law was to eliminate foster care drift by requiring states to adopt statutes to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs.
In re Adoption/ Guardianship of Nos. J9610436 and J9711031, 796 A.2d 778, 783-84
See footnote Among other things, the federal act requires the state to
provide a written case plan for each child for whom the state claims
federal foster care maintenance payments. 42 U.S.C. § 671(a)(16).See footnote The court
then has an essential responsibility to supervise an appropriate permanency plan intended to
thwart foster care drift.
Fourth, the odds of an accurate determination in a termination case are enhanced
by the fact of judicial involvement that is much more intensive than it
is the usual criminal case. As Judge Tamila noted for the Superior
Court of Pennsylvania:
[B]ecause of the doctrine of Parens Patriae and the need to focus on the best interest of the child, the trial judge, who is the fact finder, is required to be an attentive and involved participant in the process. While he must depend upon the litigants to present the evidence to establish the particular elements or defenses in the termination case, he is not limited to their presentations, and as in any custody case, he may require more than they present and direct further investigation, evaluations or expert testimony to assure him that the interests of the child and the respective parties are properly represented. Under the aegis of the court, the role of the lawyer, while important, does not carry the deleterious impact of ineffectiveness that may occur in criminal proceedings.
In re adoption of T.M.F., 573 A.2d 1035, 1042-43 (Pa. Super. Ct. 1990).
American public policy holds that children are likely raised best by their parents. Parental termination is a last resort. Parents have numerous opportunities to rectify their situations before the parental termination hearing. A termination hearing results only when attempts to rectify the conditions that led to removal from the parents have failed over a prolonged period.
Where parents whose rights were terminated upon trial claim or appeal that their lawyer underperformed, we deem the focus of the inquiry to be whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination. The question is not whether the lawyer might have objected to this or that, but whether the lawyers overall performance was so defective that the appellate court cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the childs best interest. See footnote
Strodtman appropriately questioned and cross-examined witnesses on behalf of both parents and
he also cross-examined both Mother and Father when they were called to testify.
(Appellee Br. at 7; T.R. at 19, 70, 138, 154, 163.)
Strodtmans prediction that Mother and Father did not have adverse interests and were
not presenting evidence against one another proved correct. At no time did
they blame each other for the allegations made by the OFC. (Appellee
Br. at 10.)
Moreover, the record does not suggest that either parent stood to gain significantly
by separate representation. Both parents were individually and independently required to complete
certain treatments and services to regain custody of D.C. Each of them
was responsible for his or her own services and neither could gain from
the others participation or lack thereof. (Appellee Br. at 9.)
The record does support, alternatively, that both parents neglected to complete the treatments and services required of them after being afforded ample opportunities. In fact, both parents admitted that they could not be good parents to D.C. at that time. Father testified:
Q: What have you done to prepare for [D.C.] coming to live with you?
A: I just told you. I am staying from here to there. Im getting ready to go in-patient. Now I cant prepare her no place right now
Q: So its fair to say that you couldnt have [D.C.] returned to you right now, isnt that true?
A: She can still stay in foster care with my mother. But I cant have her returned to me right now.
(T.R. at 66.) Mother said: I cant help nobody right now.
Im trying to help myself
I cant be that parent to
[D.C.] right now until I get help for me. (T.R. at 132.)
There is nothing to suggest that representation by a single lawyer led to a fundamentally unfair hearing.