Opinion
23A-JT-3041
09-12-2024
In re the Involuntary Termination of the Parent-Child Relationship of D.J. (Minor Child) and H.H. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner and Kids' Voice of Indiana, Appellee-Guardian Ad Litem
ATTORNEY FOR APPELLANT Megan Shipley Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Indiana Attorney General Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jennifer Hubartt, Magistrate Trial Court Cause No. 49D14-2107-JT-6156
ATTORNEY FOR APPELLANT
Megan Shipley
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR INDIANA DEPARTMENT OF CHILD SERVICES
Theodore E. Rokita
Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] H.H. (Mother) appeals the involuntary termination of her parental rights to her minor child D.J. (Child). Mother argues that the trial court abused its discretion by granting her attorney's motion to withdraw because the motion violated a Marion County local court rule regarding notice and timing requirements. Mother also argues that the trial court violated her due process rights by allowing counsel to withdraw when she had not knowingly and voluntarily waived her right to counsel. Concluding that the trial court did not abuse its discretion by granting Mother's attorney's motion to withdraw and that Mother was not denied counsel without due process, we affirm.
Facts and Procedural History
[¶2] In August 2018, Mother gave birth to Child. Child's father (Father) consented to Child's adoption and does not participate in this appeal. Thus, the facts for this case will generally be limited to those pertinent to Mother and Child.
[¶3] On April 5, 2019, the Indiana Department of Child Services (DCS) investigated a report that Mother had stabbed Father twice with a knife in Child's presence. Child was removed from Mother and Father and placed in relative care. On April 11, DCS filed a petition alleging that Child was a child in need of services (CHINS) due to Mother's failure to provide Child with a home free from violence. At the hearing held on that date, the trial court appointed counsel to represent Mother, granted wardship of Child to DCS, appointed a guardian ad litem (GAL), and provided that the permanency plan was reunification.
[¶4] On July 31, the trial court adjudicated Child a CHINS, after Mother entered an admission at the factfinding hearing held that same day. She admitted that Child was a "child in need of services because parents need assistance maintaining a home free from domestic violence. Therefore, the coercive intervention of the Court is necessary." Appealed Order at 2. The permanency plan remained reunification. The trial court entered a parental participation order requiring Mother to engage in a domestic violence assessment and homebased therapy with a couples counseling component and follow all recommendations.
[¶5] Periodic review hearings were held in November 2019 and February 2020. Following a permanency hearing held in May 2020, the trial court issued an order finding that Mother had completed a twenty-six-week domestic violence course but had failed to complete the court-ordered home-based therapy. In subsequent permanency hearing orders issued in February and July 2021, the trial court found that Mother had made "limited progress with the services" that DCS had offered; Child had been in her foster home placement for approximately two years and had bonded with her foster family; Mother had not made "meaningful or sustainable progress toward reunification" with Child; and Mother had not received "positive recommendations" from DCS regarding an increase in her parenting time. Ex. Vol. 1 at 99, 104. During the CHINS proceedings, Mother worked with over twenty service providers but was unsuccessfully discharged from all of them for reasons that included "lack of consistent contact and cooperation or progress with [the] services." Appealed Order at 3. On July 21, 2021, the trial court modified Child's permanency plan to adoption.
[¶6] On July 23, 2021, DCS filed a petition for the involuntary termination of Mother's parental relationship with Child. At the initial hearing, the trial court appointed attorney Amber Benson (Attorney Benson) with the Marion County Public Defender Agency (MCPDA) to represent Mother. Attorney Benson left the MCPDA in February 2022, and the trial court appointed public defender Shashan Deyoung (Attorney Deyoung) to represent Mother. The trial court had originally scheduled the termination hearing to take place in December 2021. However, the parties filed, and the trial court granted, numerous motions to continue the hearing, which resulted in the court scheduling and rescheduling the hearing multiple times.
Mother waived the termination of parental rights hearing being held outside the statutory timeframe. See Ind. Code § 31-35-2-6.
[¶7] On February 17, 2023, Attorney Deyoung filed a motion to withdraw from Mother's case, informing the trial court that there had been a breakdown in the attorney-client relationship such that Attorney Deyoung could no longer represent Mother. Attorney Deyoung attached to her motion the letter she had sent to Mother on February 6, 2023, referencing the CHINS case, explaining the matter, conveying the consequences of Mother's failure to communicate with the attorney, and informing Mother that the "next court date for this case is a bench trial on Monday[,] June 5th, 2023 at 9:00 am[.]" Appellant's App. Vol. 2 at 156. On February 19, the trial court granted Attorney Deyoung's motion to withdraw from Mother's case.
[¶8] At some point after Attorney Deyoung had withdrawn from Mother's case, Mother requested that the trial court reappoint a public defender to represent her, and on May 31, 2023, attorney Nicolas Law (Attorney Law) entered his appearance in her case. Mother was incarcerated in the Hamilton County Jail at the time. Attorney Law filed a motion to continue the termination hearing, and the court rescheduled the hearing for August 29, 2023.
[¶9] The trial court held a pretrial conference on July 26. Attorney Law had last communicated with Mother on July 13. Attorney Law told the court that he had spoken to Mother "shortly" after she was released from jail, and he had "sent her numerous texts asking her to contact [him]" but he had "not been able to establish contact with her." Supp. Tr. Vol. 2 at 41. The court confirmed that the termination hearing was scheduled for August 29, told the parties that it did not want to continue the hearing beyond that date, and told Attorney Law that "if [he] need[ed] to file a motion to withdraw [from the case], please file it." Id. at 42.
[¶10] On August 3, 2023, Attorney Law sent Mother a letter referencing the termination case and informing her of the August 29 hearing date and his intent to withdraw from her case if he did not hear from her in the next ten days. The letter provided in relevant part:
I have not heard from you since we exchanged phone texts on July 13, 2023, when you texted me back saying you would call me back later but did not.
We have a hearing on the petition by [DCS] to involuntarily terminate your parental rights set for 8/29/23 at 9:30 a.m[.] I have attempted to contact you through various provided numbers so we can prepare for this case, but with no success. It is essential that I have your assistance and input if we are to have a chance at securing a favorable outcome. I cannot effectively represent you if you do not cooperate with me or communicate with me in preparing your case.
Under Marion County Local Rule, I am required to advise you in writing ten (10) days in advance before I may withdraw as your attorney. This letter serves as notice to you that it is my intention to withdraw ten (10) days from the date of this letter. The only thing that will change my mind is if I hear from you within the next ten (10) days.... The consequence of my withdrawal is that you will not have an attorney or public defender to defend this case for you. Your failure to secure new counsel may result in a default or other adverse judgment against you, including an order terminating your parental rights.
This is an urgent matter requiring your immediate attention.... The next set hearing is the termination of parental rights hearing set for August 29, 2023[.] This is an in-person hearing at which you are expected to be present. Fail[] to appear and the court may default on your case and order your parental rights terminated.Appellant's App. Vol. 2 at 199 (emphases omitted).
[¶11] On August 14, Attorney Law filed his motion to withdraw from Mother's case, informing the trial court that there had been a breakdown in the attorney-client relationship such that he could no longer represent Mother and that Mother had failed to maintain contact with him. Attorney Law attached to his motion a copy of the August 3 letter he had sent to Mother. However, he did not include a notice certifying Mother's last known address and phone number, as required by Indiana Trial Rule 3.1(H), and he did not send Mother a copy of his motion to withdraw. On August 15, the trial court granted Attorney Law's motion. The trial court's order was not served on Mother.
Indiana Trial Rule 3.1(H) governs the withdrawal of representation and provides in relevant part:
An attorney representing a party may file a motion to withdraw representation of the party upon a showing that the attorney has sent written notice of intent to withdraw to the party at least ten (10) days before filing a motion to withdraw representation, and ...:
(1) the terms and conditions of the attorney's agreement with the party regarding the scope of the representation have been satisfied[.]
An attorney filing a motion to withdraw from representation shall certify the last known address and telephone number of the party, ... and shall attach to the motion a copy of the notice of intent to withdraw that was sent to the party.
A motion for withdrawal of representation shall be granted by the court unless the court specifically finds that withdrawal is not reasonable or consistent with the efficient administration of justice.(Emphasis added).
[¶12] On August 25, DCS alerted the trial court that Mother again was incarcerated in the Hamilton County Jail. On August 29, the trial court commenced the termination hearing, and Mother attended the hearing remotely from the jail via video call. The quality of the audio was poor at times, and both Mother and the court struggled to understand what the other was saying. The trial court told Mother that it was going to continue the termination hearing and appoint counsel to represent her. Mother replied, "Yes, ma'am." Supp. Tr. Vol. 2 at 48. The court added, "I think that - you will not need to appear for that date, from Hamilton County." Id. The trial court then continued the matter and scheduled the pretrial conference for September 6. The court did not set a date for the termination hearing at that time.
[¶13] On August 30, Attorney Law again filed an appearance to represent Mother. At the September 6 pretrial conference, Attorney Law told the court that he had arranged a telephone call with Mother for August 30, but the call did not take place because Mother had been released from jail that day, and since Mother's release, she "ha[d] not been in contact with [him]." Id. at 50. Attorney Law added that he had tried unsuccessfully to contact Mother using "several phone numbers [that he had] for her." Id. at 51. And the DCS family case manager (FCM) who had been assigned to Mother's case told the court that she did not have "any new contact information" for Mother and "ha[d] not spoken with her since the [August 29 hearing]." Id. at 50. The court rescheduled the termination hearing for November 2.
[¶14] On October 13, Attorney Law sent a letter to Mother referencing the cause numbers for both the CHINS and the termination cases. The letter read nearly identically to Attorney Law's August 3 letter to Mother, informing her that he was going to request the withdrawal of his appearance if he did not hear from her in the next ten days and warning her of the consequences of his withdrawal from her case. The letter also informed Mother that she was "scheduled for a Review Hearing on November 1, 2023 at 1:30 PM" and an "In-person Bench Trial ... on November 2, 2023 at 9:00 AM." Appellant's App. Vol. 2 at 232.
[¶15] On October 24, nine days before the termination hearing was scheduled to begin, Attorney Law filed his second motion to withdraw from Mother's case, again citing the breakdown in the attorney-client relationship and Mother's failure to communicate with him. This time, he filed a notice with the trial court certifying Mother's last known address and phone number in compliance with Indiana Trial Rule 3.1(H). But he did not send Mother a copy of his motion to withdraw.
[¶16] On November 2, 2023, the trial court held the termination hearing. Mother did not attend. Attorney Law renewed his motion to withdraw from the case, telling the court that he had not communicated with Mother since August 29 despite his efforts to contact her via telephone calls, text messages, and email. Attorney Law also told the court that he had contacted the attorney who had represented Mother in her criminal matter, but that attorney also had "not been in contact" with Mother. The trial court granted Attorney Law's motion to withdraw, finding that
considering the efforts you have made to represent mother, contact mother with no success and certainly given the history of this matter, the Court is going to find you have certainly made diligent efforts to contact and represent this woman and with no success and so, therefore, I am also going to grant your motion to withdraw today. I find that to be appropriate and that you would be incapable of representing her at this time due to a lack of contact you wouldn't be able to really do much for her. So, that will be granted[.]Tr. Vol. 2 at 16-17. Attorney Law left the courtroom.
[¶17] The court then proceeded with the termination hearing. Evidence included testimony by Child's foster mother, FCM Samantha DeWeese, who began working with Mother in September 2022, and Child's GAL Courtney Ryan. The trial court learned that Child was currently five years old and in kindergarten. She had lived with her foster mother since July 2019 and was doing well in her foster home. The foster mother intended to adopt Child if Mother's parental rights were terminated.
[¶18] The trial court learned from FCM DeWeese that between 2019 and 2023, DCS had made referrals for Mother to work with ten to fifteen different home-based therapists, but none successfully discharged Mother from the service. In 2022, Mother still had in place a referral for supervised visits with Child, but the referral was closed in January 2023 for Mother's failure to participate. Mother's last visit with Child was in June 2022. Mother last submitted to a drug screen on June 30, 2022, and she tested positive for cocaine. FCM DeWeese testified that Mother had not "remedied the reasons for [DCS's] involvement" in the case. Id. at 39.
[¶19] Mother did not remain in contact with the FCM, and the FCM had difficulty communicating with Mother. FCM DeWeese attempted to call Mother to remind her of the November 2 termination hearing, but the phone number had been disconnected. And DCS had mailed a notice to Mother containing the time, date, and location of the termination hearing to four different addresses where Mother had previously resided, including the Hamilton County Jail.
[¶20] The trial court learned from GAL Ryan that she began working with Child around May 2022. While involved with Child, the GAL had "very limited contact with both parents[,]" and the only time she had spoken with Mother "was during a mediation[.]" Id. at 42. GAL Ryan testified to her concerns regarding Mother, including Mother "being in and out of incarceration throughout the duration of the case[,]" Mother's illegal substance use, her lack of engagement with the services DCS had provided, and her lack of consistency, cancellations, and "no-shows" regarding visitation with Child. Id. at 44. Both FCM DeWeese and GAL Ryan testified that termination was in Child's best interests.
[¶21] On November 21, 2023, the trial court issued its order terminating the parent child relationship between Mother and Child. Regarding Attorney Law's withdrawal from the case, the trial court found as follows:
Prior to the commencement of the trial in this matter, the Court addressed a Motion to Withdraw representation, filed on or about October 24, 2023 by [Mother's] Court appointed counsel. [Mother] has an extensive history of incarceration and release, followed by her whereabouts being unknown, during both the underlying [CHINS] and Termination (TPR) proceedings. [Mother] has been represented by counsel who have moved to withdraw at least twice during the TPR matter. On the date of this trial, Court[-]appointed counsel for [Mother] renewed his Motion to Withdraw. Counsel filed a Notice of last known address and contact information, all of which both counsel and [DCS] unsuccessfully utilized in an effort to provide [Mother] with notice and an opportunity to be heard at this trial. [Mother] was advised of this trial date and time at the last trial date on or about August 29, 2023[, when she appeared from the Hamilton County, Indiana jail and requested a continuance of that trial date and re-appointment of counsel.... The Court is satisfied, through its on[-]record inquiry prior to commencement of this trial, that [Mother] has had notice of her right to an attorney in this matter, has in fact been represented by counsel in this matter, and has failed to maintain contact with counsel to enable counsel to adequately represent her in this matter. The Court granted counsel's current Motion to Withdraw prior to the commencement of this trial.Appealed Order at 1-2. The trial court also found that Child had been removed from Mother for at least six months under a dispositional decree; there is a reasonable probability that the conditions that resulted in their removal or the reasons for placement outside Mother's home will not be remedied; continuation of the parent-child relationship poses a threat to Child's wellbeing; termination of parental rights is in Child's best interests; and there is a satisfactory plan for Child's care and treatment, which is adoption. Mother now appeals. Additional facts will be provided as necessary.
In fact, the trial court did not inform Mother of the November 2, 2023 termination hearing date during the August 29, 2023 hearing. The trial court set the November 2 hearing date during the September 6, 2023 pretrial conference, which Mother did not attend.
Discussion and Decision
[¶22] We recognize that "a parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005)). "[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities." In re A.P., 882 N.E.2d 799, 805 (Ind.Ct.App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore "termination is intended as a last resort, available only when all other reasonable efforts have failed." Id. The purpose of terminating parental rights is to protect the child, not to punish the parent. In re T.F., 743 N.E.2d 766, 773 (Ind.Ct.App. 2001), trans. denied.
[¶23] "We have long had a highly deferential standard of review in cases involving the termination of parental rights." In re C.A., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014).
In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)].In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted).
[¶24] On appeal, Mother does not challenge the trial court's findings in its termination order or the sufficiency of the evidence that DCS presented to sustain the trial court's termination of her parental rights to Child. Instead, Mother claims that she is entitled to reversal because the trial court abused its discretion under a local court rule by granting her attorney's motion to withdraw his representation from her case that was filed one day late and that the trial court violated her due process rights by allowing her attorney to withdraw from her case without a valid waiver of her right to counsel.
Section 1 - The trial court did not abuse its discretion under local court rule by granting Mother's attorney's late-filed motion to withdraw from her case.
[¶25] The decision to grant or deny an attorney's motion to withdraw his or her appearance is left to the sound discretion of the trial court. In re K.S., 917 N.E.2d 158, 162 (Ind.Ct.App. 2009). An abuse of discretion exists only when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. In addition, this court will not reweigh the evidence or judge the credibility of witnesses when reviewing a case for an abuse of discretion. Id.
[¶26] Mother contends that the trial court abused its discretion by granting Attorney Law's motion to withdraw from her case because, according to Mother, the motion violated the notice and timing requirements under Marion County Local Court Rule LR49-TR3.1-201 (Local Rule LR49-TR3.1-201). The rule governs the withdrawal of an appearance and provides that "[p]ermission to withdraw shall be given only after the withdrawing attorney has given his client ten days written notice of his intention to withdraw...." Local Rule LR49-TR3.1-201. The rule further provides:
The letter of withdrawal [to the attorney's client] shall explain to the client that failure to secure new counsel may result in dismissal of the client's case or a default judgment may be entered against him, whichever is appropriate, and other pertinent information such as trial setting date or any other hearing date. The Court will not grant a request for withdrawal of appearance unless the same has been filed with the Court at least ten days prior to trial date, except for good cause shown.Id. (emphasis added). This Court has interpreted the last sentence of the rule
to mean that the trial court is not permitted to grant an attorney's request to withdraw h[is] appearance if that attorney has not given h[is] client written notice and filed a copy with the court at least ten days prior to the trial date. However, if the requesting attorney shows good cause for not timely filing h[is] request with the court, then the court may consider counsel's request. Thus, the good cause exception applies only when counsel fails to timely file h[is] written request with the court at least ten days prior to the trial date.K.S., 917 N.E.2d at 164.
[¶27] Here, Attorney Law filed his motion to withdraw with the trial court on October 24, 2023, nine days, and not the requisite ten days, prior to the termination hearing date, and there is no evidence that the attorney showed good cause for filing his motion late. However, notwithstanding the late filing of the motion to withdraw and the failure to show good cause, under the facts and circumstances of this case, we find that the trial court did not abuse its discretion by granting the motion to withdraw.
[¶28] Attorney Law sent Mother a letter twenty days before the termination hearing, informing her of his intent to withdraw from her case if she did not contact him within ten days and the risks of his withdrawal. The letter listed the dates, times, and location of Mother's CHINS and termination hearings and warned her that "failure to secure new counsel may result in a default or other adverse judgment against" her. Appellant's App. Vol. 2 at 232. This was the second time that Attorney Law had sent Mother a letter informing her of his intent to withdraw. Mother did not respond to either letter. Furthermore, the record indicates that Mother showed no interest in participating in the termination case and that the only time that Attorney Law was able to communicate with Mother was when she was incarcerated. Attorney Law's subsequent attempts to contact Mother via mail at her last known address, phone calls, text messages, and emails proved unsuccessful. And while we do not excuse Attorney Law's late filing of the motion or his failure to show cause for the late filing, Mother has not shown that she was prejudiced by the fact that the motion was filed one day late. Based on the foregoing, we cannot say that the trial court abused its discretion in granting the late-filed motion to withdraw.
Mother also contends that Attorney Law's October 13 letter informing her of his intent to withdraw was confusing. Mother argues that the letter did not reasonably notify her of her attorney's intent to withdraw from her termination case because it listed Mother's CHINS case and the cause numbers for the CHINS and termination cases in the letter's reference line, but made "no reference [in the body of the letter] to the fact that [Mother] had both a CHINS case and a termination case." Appellant's Br. at 19. To support her argument, Mother cites In re E.E., 853 N.E.2d 1037, 1042-43 (Ind.Ct.App. 2006), trans. denied, where a panel of this Court held that a notice DCS sent to the father as to the date and time of the final termination hearing was ambiguous. However, we found that the father had waived the issue for failure to object and that, waiver notwithstanding, the error was not fundamental. Turning to the instant case, while Attorney Law's letter could have been more artfully drafted, we find that the letter was not ambiguous and adequately informed Mother of her attorney's intent to withdraw his representation from her termination case. Regarding Mother's claims that the trial court erred by granting Attorney Law's motion to withdraw because (1) her attorney failed to serve her with a copy of his motion to withdraw, and (2) she "did not receive notice" that the trial court had orally granted the motion at the start of the termination hearing, Appellant's Br. at 21, Mother points to no rule or statute to support her claims. And we note that Attorney Law fulfilled the requirement of Local Rule 49-TR3.1-201 when he sent his October 13 letter to Mother at her last known address.
Section 2 -Mother was not denied counsel without due process when the trial court allowed her attorney to withdraw his representation from her case and held the termination hearing in her absence.
[¶29] In an action seeking to involuntarily terminate a parent's right to their children, the parent is entitled "(1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent[.]" Ind. Code § 31-32-2-3(b). Pursuant to Indiana Code Section 31-32-2-5, a "parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship." Additionally, if
(1) a parent in proceedings to terminate the parent-child relationship does not have an attorney who may represent the parent without a conflict of interest; and
(2) the parent has not lawfully waived the parent's right to counsel under [Indiana Code chapter 31-32-5];
the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time.Ind. Code § 31-32-4-3(a). The right to counsel in a termination proceeding may only be waived "if the parent does so knowingly and voluntarily." Ind. Code § 31-32-5-5.
[¶30] Mother contends that the trial court violated her due process right to counsel by allowing her attorney to withdraw from her case and conducting the termination hearing in her absence when Mother did not knowingly and voluntarily waive her right to counsel. In other words, Mother contends that she was denied counsel without due process.
[¶31] Due process safeguards preclude "state action that deprives a person of life, liberty, or property without a fair proceeding." In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (internal quotation marks and citations omitted). "'It is unequivocal that the termination of a parent-child relationship by the State constitutes the deprivation of an important interest warranting deference and protection, and therefore when the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process.'" In re J.K., 30 N.E.3d 695, 699 (Ind. 2015) (quoting G.P., 4 N.E.3d at 1165). Due process has never been defined, but the phrase embodies a requirement of fundamental fairness. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). The United States Supreme Court has written that "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks and citation omitted).
[¶32] The process due in a termination of parental rights proceeding turns on the balancing of three factors from Mathews: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. In re D.H., 119 N.E.3d 578, 588 (Ind.Ct.App. 2019), trans. denied. "The balancing of these factors recognizes that although due process is not dependent on the underlying facts of the particular case, it is nevertheless 'flexible and calls for such procedural protections as the particular situation demands.'" C.G., 954 N.E.2d at 917 (quoting Mathews, 424 U.S. at 334).
[¶33] The private interest affected by the proceeding in this case, a parent's interest in the care, custody, and control of his or her child, is substantial. D.H., 119 N.E.3d at 588. The State's interest in protecting the welfare of a child is also substantial. Id. "Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions." Id.
[¶34] In assessing the risk of error, we find instructive In re X.S. v. Indiana Department of Child Services, 117 N.E.3d 601 (Ind.Ct.App. 2018). In that case, the incarcerated father had been informed telephonically, by letter, and by summons of his right to legal representation in a termination of parental rights proceeding. However, he made "no request for counsel or transportation and no other attempt to participate in the termination proceedings." Id. at 604. The termination hearing was held "at which Father failed to appear personally or by counsel, after which the juvenile court ordered" that the father's parental rights to the child be terminated. Id. In reviewing the father's claim that his due process rights were violated when the trial court did not appoint counsel for him, we applied the Mathews factors.
[¶35] Regarding the private interests, we noted that while it is "impossible" to assign specific weights to the interests of the parent and the child in a termination proceeding, "suffice it to say that the parent's interests do not outweigh the child's interests to such a degree that extraordinary measures are warranted to protect the former at the expense of the latter." Id. at 607. Regarding the risk of error for the chosen procedure, we observed that "even if a wrongful denial of counsel were to occur, the inherent nature of termination proceedings is such that the risk of erroneous disposition due to lack of representation is much lower than in most other legal proceedings" because "the juvenile court is looking out for the parent's interests in a termination proceeding even if an attorney is not." Id.
[¶36] After balancing the Mathews factors, we concluded in X.S. that the father had failed to establish that his due process rights were violated, reasoning that
a balancing of the Mathews factors does not require more process in termination proceedings than Father was given in this case. Father was informed on multiple occasions of the right to counsel, and if he wanted counsel, all he would have had to do was make a telephone call. We do not believe that this is too much to ask of a parent in a termination proceeding. Moreover, there is a greatly reduced risk of error in termination proceedings, even without counsel, which also weighs against a more burdensome procedure. Finally, the interests of Child and the State in a speedy resolution are well-served by the procedure used in this case. A more involved process would, in our view, not do much to advance Father's interests while very possibly negatively affecting the interests of Child and the State through delay and unnecessary commitment of resources. In summary, we conclude that the procedure used in this case provided Father with the opportunity to be heard at a meaningful time and in a meaningful manner.Id. at 608 (internal quotation marks and citation omitted).
[¶37] Here, we find that the risk of error created when the termination hearing was held after the trial court allowed Mother's counsel to withdraw from her case was minimal. We observe that like the father in X.S., Mother made "no attempt to participate" in the termination hearing. See id. at 604. Mother's attorney notified her at her last known address of his intent to withdraw his representation if she did not promptly contact him. Mother did not do so. Attorney Law filed a motion to withdraw from Mother's case and renewed his motion at the start of the termination hearing, telling the trial court that he had last communicated with Mother more than two months prior and that his subsequent attempts to contact her via mail at her last known address, phone calls, text messages, and emails had proven unsuccessful. Additional attempts to contact Mother likely would have been futile, and this Court has recognized that delays in the adjudication of a case "impose significant costs upon the functions of government as well as an intangible cost to the lives of the children involved." In re B.J., 879 N.E.2d 7, 17 (Ind.Ct.App. 2008) (quotation marks and citation omitted), trans. denied. Therefore, under the facts and circumstances of this case, in balancing Mother's fundamental interest against DCS's own compelling interest and given the minimal risk of error from the trial court's decision to proceed with the termination hearing, we conclude that the trial court did not violate Mother's due process right to counsel by allowing her attorney to withdraw from her case and then proceeding with the termination hearing in her absence.
[¶38] Affirmed.
Bradford, J., and Tavitas, J., concur.