Matter of DT

547 N.E.2d 278, 1989 WL 147534
CourtIndiana Court of Appeals
DecidedDecember 5, 1989
Docket71A03-8812-CV-371
StatusPublished
Cited by18 cases

This text of 547 N.E.2d 278 (Matter of DT) 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
Matter of DT, 547 N.E.2d 278, 1989 WL 147534 (Ind. Ct. App. 1989).

Opinion

547 N.E.2d 278 (1989)

In the matter of the Termination of the Parent/Child Relationship of D.T., J.B., S.B. and S.B., Children and Lola Bickel, Their Parent.
Lola Bickel, Respondent-Appellant,
v.
ST. JOSEPH COUNTY DEPARTMENT OF PUBLIC WELFARE, Petitioner-Appellee.

No. 71A03-8812-CV-371.

Court of Appeals of Indiana, Third District.

December 5, 1989.
Rehearing Denied February 20, 1990.

*281 Vickie Yaser, Indianapolis, for respondent-appellant.

Bruce J. Bon Durant, South Bend, for petitioner-appellee.

MEMORANDUM DECISION

GARRARD, Presiding Judge.

On March 7, 1988, the St. Joseph Probate Court terminated the parent-child relationship between Lola Bickel and her four children. Lola Bickel appeals the court's order and presents three issues for review:

(1) Whether Lola received the effective assistance of counsel in the termination proceeding.
(2) Whether Lola was denied a fair trial because the judge's past familiarity with the family led to a judgment based upon evidence not adduced at trial.
(3) Whether the evidence was sufficient to support the trial court's judgment terminating Lola's parental rights.

We affirm.

Facts and Procedural History

On August 5, 1985, Lola took her six-year old daughter, J.B., to be examined by a pediatrician because she suspected her daughter had been sexually molested. The doctor's examination failed to indicate sexual molestation, but J.B., in response to questions, indicated she had been touched "where she shouldn't be touched." J.B. named two individuals who had touched her, and the pediatrician referred Lola to the welfare department.

Lola and her husband Stan, J.B.'s father, went to the office of the St. Joseph County Department of Public Welfare (hereinafter DPW). Lola informed the intake caseworker that she had sexually molested J.B. as an infant and that she recently had learned that her husband Stand was allowing J.B. to commit fellatio. At that time J.B. remained in Lola's house because Stan had moved out and was living with his parents. A week later, however, Lola called the DPW and asked that J.B. be removed so that Stan could return to the home. J.B. was removed from Lola's custody on August 16, 1985. The other children, D.T., age 10, and the two younger sisters, ages two years and three months respectively, remained in the home. The parents began participating in therapy at the Family and Children's Center.

The DPW filed a verified petition alleging child in need of services on August 28, 1985, and asserted that all four children were in need of services. On October 2, 1985, the court found that children were in need of services. J.B. was ordered to remain in foster care; the other three children remained at home. Eight weeks later, the DPW filed a six-month review and requested that the remaining children be removed from the house because the children were at risk due to Lola's psychological problems. The court modified its original disposition. D.T. was placed in a residential treatment facility for disturbed boys, and the younger girls were placed in foster care.

On January 14, 1987, the DPW filed its eighteen-month review and the court set a hearing for February 4, 1987. Attorney Douglas Seely entered his appearance on Lola's behalf on January 30, 1987. The matter was continued for pre-trial conference to be held March 12, 1987. On March 6, 1987, the DPW filed its petition for termination of the parent-child relationship. The court heard the case on October 16, and November 19, 1987. On March 7, 1988, it issued comprehensive findings of fact and conclusions.

Motion to correct errors was filed May 6, 1988, and denied October 27, 1988.

I.

Lola contends for the first time on appeal that she received unreasonably deficient legal representation. She contends specifically that her attorney had very little experience in juvenile matters, that he failed to make pretrial discovery, and failed to make timely objections to statutory procedures, and that he told Lola to stop cooperating *282 with the DPW once it had initiated termination proceedings. Lola contends this ineffective assistance is fundamental error.

Lola urges us to employ the standard used in criminal cases to evaluate counsel's effectiveness. For purposes of this opinion we will assume that standard is appropriate, given the nature of the rights terminated. See Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599. To find that counsel was ineffective, the court must find that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that the substandard performance was so prejudicial as to have deprived Lola of a fair adjudication. Schiro v. State (1989), Ind., 533 N.E.2d 1201, 1204. The result must be rendered unreliable, and the party asserting the ineffective assistance claim has the burden of showing that the decision reached would have been different absent the errors. Lawrence v. State (1984), Ind., 464 N.E.2d 1291, 1294.

We find that Lola has not met this burden of proof. She has not demonstrated that failure to initiate discovery in any way prejudiced her defense or that an attorney following professional norms would have done so. She has also failed to show that she would have any likelihood of prevailing on objections which she alleges her counsel failed to make. Also, counsel's alleged inexperience in juvenile matters does not render his assistance ineffective. Inexperience, isolated mistakes, poor strategy or bad tactics do not necessarily amount to ineffective assistance. Schiro v. State, supra, 533 N.E.2d at 1206; Lawrence v. State, supra, 464 N.E.2d at 1295.

The most serious claim is that Lola's counsel advised her "not to pay any more attention" to the DPW once it had initiated termination proceedings. Lola claims she relied on her attorney's admonition to her detriment; if she had remained in DPW's programs, her parental rights would not have been terminated. It is likely that counsel's remark was intended as an admonishment to protect her own interests. As we discuss later in this opinion, however, participation in DPW's programs alone does not guarantee that a court will find that a person has been a fit parent. Matter of J.H. (1984), Ind. App., 468 N.E.2d 542, 546. DPW had, in fact, initiated proceedings because Lola was not making progress in these programs. Lola has failed to demonstrate prejudice.

This case is analogous to the case where counsel advises a defendant to enter a guilty plea. The guilty plea defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Burse v. State (1987), Ind., 515 N.E.2d 1383, 1385. Here Lola must show a reasonable probability that she would have continued counselling and made the necessary improvements that would result in permanent reunification with her family. However, Lola's own testimony indicates that she felt she no longer needed the counselling and therapy and, therefore, discontinued it.

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Cite This Page — Counsel Stack

Bluebook (online)
547 N.E.2d 278, 1989 WL 147534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-dt-indctapp-1989.