Indiana Department of Child Services v. S.G.

911 N.E.2d 36, 2009 Ind. App. LEXIS 1046
CourtIndiana Court of Appeals
DecidedAugust 7, 2009
DocketNo. 32A04-0902-JV-79
StatusPublished
Cited by4 cases

This text of 911 N.E.2d 36 (Indiana Department of Child Services v. S.G.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Indiana Department of Child Services v. S.G., 911 N.E.2d 36, 2009 Ind. App. LEXIS 1046 (Ind. Ct. App. 2009).

Opinions

OPINION

BAKER, Chief Judge.

Appellant-petitioner Indiana Department of Child Services (DCS) appeals the trial court's order directing DCS to pay the fees of the attorney who was appointed to represent appellee-respondent S.G. (Mother). DCS argues that the trial court erred by ordering DCS to pay the attorney fees of Mother's court appointed counsel. Finding that, notwithstanding a recent revision of the relevant statutes, the General Assembly did not intend for DCS to bear the burden of court appointed legal services in termination proceedings, and that the county should continue to be responsible for those costs, we reverse and remand for further proceedings.

FACTS

In 2007, J.G. (Child) was determined to be a child in need of services (CHINS). On November 21, 2008, DCS filed a petition to terminate the parent-child relationship of Mother, Child, and J.G. (Father), the child's biological father. At a January 22, 2009, initial hearing on the petition, the trial court appointed an attorney to represent Mother. At the same hearing, the trial court ordered DCS to pay the appointed attorney fees over DCS's objection. DCS now brings this interlocutory appeal.1

DISCUSSION AND DECISION

I. Standard of Review

DCS argues that it is not statutorily required to pay for the appointment of counsel to represent Mother during the termination proceeding and that we should review the issue de novo.2 Mother contends that DCS is appealing a negative judgment and that a clearly erroneous standard applies. See In re J.C., 735 N.E.2d 848, 849 (Ind.Ct.App.2000) (applying a negative judgment standard of review in considering whether a county office of family and children is required to pay guardian ad litem fees in a CHINS proceeding).

[38]*38Although there are circumstances in which the negative judgment standard of review applies, this is not one of them. Here, the question raised by DCS-whether it or the county is obligated to pay for court appointed counsel representing a parent facing the termination of the parent-child relationship-is a pure question of statutory interpretation. Therefore, we will apply a de novo standard of review to this appeal,. R.J.G. v. State, 902 N.E.2d 804, 805 (Ind.2009).

IIL. Historical Overview

Another panel of this court very recently considered a similar issue to the one we confront herein. In re N.S. & J.M., 908 N.E.2d 1176 (Ind.Ct.App., 2009). Specifically, the N.S. court concluded that Indiana Code sections 31-40-3-2 and 33-24-6-4 "indicate that fees associated with services provided by the [guardians ad li-tem] are to be paid by the county" and reversed the trial court's judgment to the contrary. 908 N.E.2d p. 1177. Although the issue we confront herein is distinct from that resolved by N.S., the underlying statutory scheme is the same, and the N.S. court included a thorough and helpful overview of the statutory scheme and recent changes thereto:

Historically, the decision as to what services to order in a CHINS proceeding was left solely to the discretion of the trial court. The trial court could consider recommendations by the local child welfare services office and representatives for the child in determining which services would be beneficial to the child. Any services ordered were paid for by the county fiscal body through the local child welfare services office. See Ind. Code § 12-19-7-1 (2007) (providing that all costs of services were required to be paid by a county). However, in 2008, the Indiana General Assembly enacted House Enrolled Aet 1001 ("HEA 1001"), which in part sought to raise the level of the quality of services provided in CHINS, termination of parental rights ("TPR"), and delinquency cases by shifting the funding burden from local government to the State in exchange for more influence by DCS in recommending services Pursuant to HEA 1001, effective January 1, 2009, DCS was granted the authority to recommend services and placements in all CHINS, TPR, and delinquency cases. Ind.Code §§ 31-34-4-7, 31-34-19-6.1 (2008). Under HEA 1001, if, in any particular case, the trial court disregards DCS's recommendations and orders services or placements other than those recommended by DCS, the county's fiscal body may become responsible for funding any and all services ordered by the trial court in that matter. Ind.Code §§ 31-84-47, 31-84-19-6.1 ....

Id. at p. 1178. The new statutory provisions, however, do not specifically state whether the burden of paying the fees associated with a court appointed attorney in termination proceedings shift to the State under HEA 1001.

TII Court Appoinited Legal Services

A. Indiana Code § 34-10-1-2

DCS relies, in large part, on the statute governing court appointed counsel for indigent parties in civil proceedings. See Ind.Code § 34-10-1-2(f) (noting that the attorney fees shall be paid from the money appropriated to the court appointing the attorney or the court from which the action was transferred). Though-as explored more fully below-we find this statute to be a helpful analog, we do not believe it to be directly applicable herein. The appointment of counsel in a civil proceeding is a discretionary decision made by the trial court based upon a number of factors. I.C. § 34-10-1-2(b)-(d).

[39]*39In termination proceedings, on the other hand, the parents are entitled to be represented by counsel as a matter of right. Indiana Code section 831-32-2-5 provides that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship." See also 1.C. § 31-82-4-1 (explaining that "[the following persons are entitled to be represented by counsel: ... (2) A parent, in a proceeding to terminate the parent-child relationship, as provided by IC 31-32-2-5....") IC. § 31-32-4-8(a) (providing that if a parent in a termination proceeding does not have an attorney who may represent the parent without a conflict of interest and the parent has not waived the right to counsel, "the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time") (emphasis added). Finally, our Supreme Court has observed that 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." Baker v. Marion County Office of Family and Children, 810 N.E.2d 1035, 1038 (Ind.2004). Inasmuch as the decision to appoint counsel to represent an indigent parent in a termination proceeding is not discretionary, we do not find that the statute governing the discretionary appointment of counsel to indigent parties in civil proceedings is directly applicable herein.3

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Treacy v. State
953 N.E.2d 634 (Indiana Court of Appeals, 2011)
In Re JG
911 N.E.2d 36 (Indiana Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
911 N.E.2d 36, 2009 Ind. App. LEXIS 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indiana-department-of-child-services-v-sg-indctapp-2009.