MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 27 2018, 10:12 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE: Danielle Sheff INDIANA DEPARTMENT OF Indianapolis, Indiana CHILD SERVICES Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis ATTORNEY FOR APPELLEE: CHILD ADVOCATES, INC. Toby Gill Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 1 of 15 In Re the Termination of the December 27, 2018 Parent-Child Relationship of: Court of Appeals Case No. 18A-JT-1250 D.C. (Minor Child) Appeal from the Marion Superior and Court J.R. (Mother), The Honorable Gary Chavers, Appellant-Respondent, Judge Pro Tem The Honorable Larry Bradley, v. Magistrate Trial Court Cause No. Indiana Department of Child 49D09-1709-JT-818 Services, Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee-Guardian Ad Litem.
Tavitas, Judge.
Case Summary [1] J.R. (“Mother”) appeals the termination of her parental rights to D.C.
(“Child”). We reverse and remand for further proceedings.
Issue [2] On appeal, Mother raises three issues, of which we find the first to be
dispositive. We restate the dispositive issue as whether the trial court erred in
failing to disqualify counsel for Child Advocates from his representation in the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 2 of 15 termination proceedings where counsel previously represented Mother in a
2013 child in need of services (“CHINS”) matter.
Facts [3] Mother is the biological parent of the Child. In 2013, after Mother tested
positive for illegal substance use, the Marion County Office of Family and
Children (“DCS”) opened a CHINS action (the “2013 CHINS action”) as to
the Child and another child of Mother’s, M. At the time, Mother was pregnant
with twins. The 2013 CHINS action ended with a guardianship after Mother
agreed to allow her brother, B.B., to serve as guardian for the Child and M.
Attorney Ryan Gardner represented Mother in the 2013 CHINS action and
prepared guardianship filings on behalf of B.B.
[4] On May 31, 2016, the Henry County Office of Family and Children initiated a
CHINS action (“the 2016 CHINS action”) as to the Child and M. due to
“allegations of abandonment and educational and medical neglect” by Mother. 1
Appellant’s App. Vol. II p. 15. The Child and M. were “ordered detained and
placed outside [Mother’s] home” at the June 1, 2016, initial hearing. Id. On
December 22, 2016, the trial court determined that the Child was a CHINS
1 On July 14, 2016, the 2016 CHINS action was transferred to Marion County, where the Child resided.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 3 of 15 after Mother admitted that she lacked housing and financial means to provide
for the Child. 2
[5] On January 20, 2017, the trial court entered a dispositional order, in which it
adopted DCS’ recommendation and ordered Mother to participate in various
services. In August 2017, citing Mother’s lack of progress, DCS and the
guardian ad litem (“GAL”), Child Advocates, recommended that the
permanency plan for the Child should be changed from reunification to
adoption.
[6] On December 2, 2017, DCS filed a petition for termination of Mother’s
parental rights to the Child. The trial court conducted the evidentiary fact-
finding hearing on DCS’ petition on April 23, 2018. DCS appeared by counsel,
and Attorney Gardner appeared as counsel for Child Advocates. During a
break in DCS’ presentation of its case-in-chief, Attorney Gardner disclosed his
previous representation of Mother in the 2013 CHINS action as follows:
MR. GARDNER: Your Honor before DCS calls the next witness I wanted to . . . . I have a bit of candor toward the tribunal, so I wanted to make sure the court was aware. I don’t believe that there’s a conflict. I do not remember this case but apparently as I look through DCS’ exhibits. If you’ll remember this case was initially set before hand [sic], Jennifer Balhon, from our office was covering it once it got continued out it fell on my docket, but it looks like from the 2013 case I’m the one who
2 According to the order of termination, M. “is still involved in a CHINS proceeding” and the permanency plan as to M. “is other than reunification.” App. Vol. II p. 16.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 4 of 15 handled the Guardianship or at least drafted it before it was two months before I left the Child Advocates, two months before I left I prepared the Guardianship for Mom’s brother and was the Public Defender appointed to represent Mom, so I was on the case for a couple of months and I left I have had no involvement with this particular case obviously. I don’t believe that my limited involvement with that case creates a conflict where I would not be able to continue on this case, but I did want to let everyone know that I was apparently the public defender in 2013 who was appointed to this case and I’m just realizing that.
THE COURT: That was the previous case?
MR. GARDNER: Yeah, the 2013.
THE COURT: Okay.
[Counsel for DCS]: We have no objection.
THE COURT: You just did the Guardianship paperwork? You really had nothing to do with . . . .
MR. GARDNER: I did [sic] really have anything to do with most of that case. As I read through the documents that were shown . . . . I left the Public Defender’s office in June 2013. It looks [sic] I did the . . . I was appointed the 18th of May in 2013 so I was on there very briefly the fact finding rolled around and it looked like the plan was a Guardianship with her brother so I went ahead and prepared the paperwork for that but that was the extent of my involvement. I did want to let the court know that at least that I was and let the party know that I was appointed as Mother’s PD for that brief period of time.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 5 of 15 [Counsel for Mother]: And Mom believes that is a conflict based on at that [sic] in her words he was trying to help her out and now he’s trying to take the kids away from her in her words, so she believes that is a conflict of interest.
MR. GARDNER: I would not [find a conflict of interest,] your Honor though it was two separate cases five years apart um I had very limited contact with Mom except for to prepare the paperwork for the Guardianship for her brother and after that actually after I prepared the paperwork I left the public defender’s office. Mr. Hayden took over my docket and actually did the Guardianship hearing and since then I’ve had zero contact or involvement with the children or with mother, so I don’t believe that context is recent enough or consistent enough to create the type of conflict that would require that I would not be able to cover this case, but I will defer to the courts, Judge.
THE COURT: Oh well you’ll be on the case. . . . .
Tr. Vol. II pp. 30-32.
[7] The evidentiary hearing proceeded. DCS called witnesses and presented
evidence, and Child Advocates agreed that adoption was in the Child’s best
interest. In an order, dated January 17, 2018, the trial court granted DCS’
petition to terminate Mother’s parental rights to the Child.
[8] On August 17, 2018, Mother submitted her brief of appellant. On September
17, 2018, Child Advocates filed a verified motion to reverse and remand and
moved, in the alternative, for a new briefing schedule. Child Advocates argued
that “remand is appropriate and ‘necessary for the administration of justice.’”
See Verified Motion to Remand, p. 2. Child Advocates further stated:
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 6 of 15 If Child Advocates, Inc. were to file its brief, it would concede that the circumstances of this case create an appearance of impropriety, and that once it was determined that [Attorney] Gardner had represented Mother in a previous child in need of services case, even without any memory of mother or recollection of the facts of her previous case, because mother did not waive the potential conflict, he should have been disqualified as counsel for Child Advocates, Inc.
Id. at 3. 3
[9] On October 4, 2018, DCS filed its brief of appellee, wherein DCS “agree[d]
with Mother’s statement of the facts relating to the attorney conflict of interest
issue” and concurred with Child Advocates’ concession of reversible error. 4
Appellee’s Br. p. 5.
Analysis [10] Mother argues that the trial court abused its discretion when it denied her
motion to disqualify Attorney Gardner from representing Child Advocates in
the termination proceedings. We agree. Child Advocates concedes reversible
error on the resulting conflict of interest issue, and DCS concurs.
3 On November 27, 2018, Child Advocates filed a notice of intent to rest on verified motion to remand and to forgo filing a response to Mother’s brief of appellant. We accepted Child Advocates’ notice on October 2, 2018. 4 DCS also argued that, “[t]o the extent this Court does not find Mother’s issue dispositive regarding the conflict of interest . . . the evidence otherwise clearly and convincingly supports termination of Mother’s parental rights. Mother does not challenge the court’s findings of fact. The unchallenged findings—which must be accepted as correct—demonstrate the trial court’s termination order is not clearly erroneous.” Appellee’s Br. p. 13.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 7 of 15 [11] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,
1230 (Ind. 2013). “[A] parent's interest in the upbringing of [his or her] child is
‘perhaps the oldest of the fundamental liberty interests recognized by th[e]
[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054
(2000)).
[12] “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 G.P., 4 N.E.3d
1158, 1165 (Ind. 2014) (quotations omitted). “Likewise, due process
protections at all stages of CHINS proceedings are vital because every CHINS
proceeding has the potential to interfere with the rights of parents in the
upbringing of their children.” Id. (quotation omitted). Our supreme court has,
thus, urged exercise of the utmost caution in “interfering with the makeup of a
family and entering a legal world that could end up in a separate proceeding
with parental rights being terminated.” In re K.D. & K. S., S.S. v. Ind. Dep’t of
Child Servs., 962 N.E.2d 1249, 1259 (Ind. 2012).
[13] It is well-settled that a trial court may disqualify an attorney for a violation of
the Indiana Rules of Professional Conduct that arises from the attorney’s
representation before the court. XYZ, D.O. v. Sykes, 20 N.E.3d 582, 585 (Ind.
Ct. App. 2014). This authority to disqualify “has been described as necessary to
prevent ‘insult and gross violations of decorum . . . .’” Id. We review a trial
court’s decision regarding disqualification for an abuse of discretion. Id. “An
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 8 of 15 abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before it or it has misinterpreted
the law.” Id.
[14] Indiana Professional Conduct Rule 1.9(a) states, “A lawyer who has formerly
represented a client in a matter shall not thereafter represent another person in
the same or a substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless the former client
gives informed consent, confirmed in writing.”
[15] In Sykes, the plaintiffs sued a doctor and his employer-hospital for medical
malpractice. The doctor subsequently moved to disqualify the law firm that
represented the plaintiffs because that law firm employed an attorney who had
previously represented the doctor in multiple medical malpractice cases.
Although the imputed disqualification issue in Sykes arose in the context of a
law firm, the panel’s analysis is nonetheless instructive here.
[16] The Sykes court analyzed the issue under the following three-part test employed
by the Seventh Circuit Court of Appeals:
First, we must determine whether a substantial relationship exists between the subject matter of the prior and present representations. If we conclude a substantial relationship does exist, we must next ascertain whether the presumption of shared confidences with respect to the prior representation has been rebutted. If we conclude this presumption has not been rebutted, we must then determine whether the presumption of shared confidences has been rebutted with respect to the present
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 9 of 15 representation. Failure to rebut this presumption would also make disqualification proper.
Sykes, 20 N.E.3d at 586 (quoting Gerald v. Turnock Plumbing, Heating, & Cooling,
LLC, 768 N.E.2d 498, 502 (Ind. Ct. App. 2002)).
[17] As to whether the prior and present representations were substantially related
for purposes of Rule 1.9, the Sykes panel determined that (1) the attorney’s prior
representations of the doctor involved defending the doctor against claims of
medical malpractice; and (2) the present representation – in which the
attorney’s new employer, the law firm, was representing the plaintiffs –
involved one claim of medical malpractice and various related claims arising
from the hospital’s alleged failure to investigate the doctor’s previous
malpractice cases. The Sykes panel, thus, found “[t]he issues in the prior and
present cases are undoubtedly closely interwoven . . . [and] there is a substantial
risk that confidential factual information as would normally have been obtained
in the prior representations would materially advance the Plaintiffs’ position in
the present case.” Id. at 587. Accordingly, on the first prong of the test, the
Sykes panel concluded that the prior and present cases were substantially
related.
[18] Next, the Sykes panel considered the rebuttable presumption that the attorney
had actually received confidential information from the doctor during the prior
representation. As the Sykes panel stated, “we must determine whether the
attorney whose change of employment created the disqualification issue was
actually privy to any confidential information [her] prior law firm received from Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 10 of 15 the party now seeking disqualification of [her] present firm.” Id. at 588 (quoting
Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)).
[19] Citing comment three to Rule 1.9, for the proposition that “[a] conclusion as to
whether a lawyer possesses such confidential information ‘may be based on the
nature of the services the lawyer provided the former client and information
that would in ordinary practice be learned by a lawyer providing such
services,’” the Sykes panel found that the presumption of shared confidences in
the prior representations was not rebutted. Prof. Cond. R. 1.9, cmt. 3. The
panel reasoned:
It is undisputed that [the attorney] was the primary and, at times, only attorney representing Doctor in each of those prior medical malpractice cases. As such, [the attorney] was privy to much confidential information, including but not limited to Doctor’s personal thoughts and mental impressions regarding the facts and circumstances and the strengths and weaknesses of those cases.
Id. at 588.
[20] As to the final prong, whether “‘there is a rebuttable presumption that the
knowledge possessed by one attorney in a law firm is shared with the other
attorneys in the firm,’” the Sykes panel concluded, pursuant to Rule 1.10(c), that
no effort by the attorney’s new employer, the law firm, to screen or “insulate
against any flow of confidential information from [the attorney] to any member
of her present law firm,” would suffice because “imputed disqualification is per
se and screening is not possible where the personally disqualified lawyer had
‘primary responsibility’ for the prior ‘matter that causes the disqualification.’” Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 11 of 15 Id. (quoting Gerald, 768 N.E.2d at 505); id. (quoting Prof. Cond. R. 1.10(c)).
The Sykes panel reasoned that, because the attorney served as the doctor’s
primary, and often only, attorney in the previous six medical malpractice cases,
the law firm could not merely screen the attorney to avoid imputation of the
conflict to the law firm.
[21] In rendering its judgment, the Sykes panel cautioned, “we must be cognizant
that ‘public trust in the integrity of the judicial process requires that any serious
doubt be resolved in favor of disqualification’” and found that the doctor’s
claim raised “serious doubt” about the law firm’s involvement in the litigation.
Id. at 589. Accordingly, the Sykes panel concluded that the trial court abused its
discretion in denying the doctor’s motion to disqualify his former attorney’s
new employer-law firm from the proceedings. The Sykes panel reversed the trial
court’s judgment and remanded for further proceedings. We feel similarly
constrained here.
[22] Here, as to whether the prior and present representations are substantially
related for purposes of Rule 1.9, the 2013 CHINS action and the 2016 CHINS
action each arose from DCS’ claims that the Child was a CHINS and that
Mother was unable to meet the Child’s basic needs. There can be no
reasonable dispute regarding this prong. The prior and present CHINS matters
were substantially related.
[23] Nor can there be any doubt as to the second prong -- the rebuttable presumption
that Attorney Gardner actually received confidential information from Mother
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 12 of 15 during the prior representation. By Attorney Gardner’s admission, he served as
Mother’s primary counsel for approximately two months of the 2013 CHINS
action; his recollection is that his role was limited to preparing guardianship
materials for Mother’s brother, B.B. Attorney Gardner’s role was more
involved, however, as Mother contends, without challenge from Child
Advocates or DCS:
In fact, Mr. Gardner did appear at a pre-trial hearing in the 2013 CHINS [action] as [Mother]’s counsel unrelated to the guardianship . . . and he also represented [Mother] at the CHINS fact-finding hearing. [ ] At the subsequent guardianship hearing, Mr. Gardner appeared as [Mother]’s brother’s private counsel.
Appellant’s Br. p. 25. Mother argues further, and we agree, that:
In the ordinary course of such representation, the attorney would necessarily learn information about [Mother]’s relationship with, and acts or omissions with regard to, [the Child]. The only logical conclusion that could be reached from Mr. Gardner’s representation of [Mother] in the CHINS proceedings is that confidential information had been disclosed in the course of his representation of [Mother].
Id. at 26. In recognition of the practical aspects of representing a parent in
CHINS proceedings, with the not-insignificant potential for termination of
parental rights, we find that the presumption that Attorney Gardner actually
received confidential information from Mother during the prior representation
has not been rebutted here.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 13 of 15 [24] As to the final prong of the Gerald test, whether “there is a rebuttable
presumption that the knowledge possessed by one attorney in a law firm is
shared with the other attorneys in the firm,” we need only look to Child
Advocates’ concession below:
. . . [T]he circumstances of this case create an appearance of impropriety, and that once it was determined that [Attorney] Gardner had represented Mother in a previous child in need of services case, even without any memory of mother or recollection of the facts of her previous case, because mother did not waive the potential conflict, [Attorney Gardner] should have been disqualified as counsel for Child Advocates, Inc.
Verified Motion to Remand, p. 3.
[25] For the foregoing reasons, we find that the trial court abused its discretion in
denying Mother’s motion to disqualify Attorney Gardner from representing
Child Advocates, an adverse party to Mother, in the 2016 CHINS action, where
Attorney Gardner previously represented Mother in the 2013 CHINS action.
Conclusion [26] Given Attorney Gardner’s previous representation of Mother in a substantially
related matter, the trial court abused its discretion in denying Mother’s motion
to disqualify Attorney Gardner from his subsequent representation of an
adverse party, Child Advocates, in an action involving Mother. We reverse the
trial court’s order terminating Mother’s parental rights to the Child and remand
for further proceedings consistent with this opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 14 of 15 [27] Reversed and remanded for further proceedings.
[28] Brown, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1250 | December 27, 2018 Page 15 of 15