IN RE THE INVOLUNTARY TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF K.W., A MINOR CHILD, AND HIS MOTHER, C.C. K.W., Appellant (Respondent below),
INDIANA DEPARTMENT OF CHILD SERVICES AND CHILD ADVOCATES, INC., Appellees (Petitioners below)
Appeal fro the Marion Superior Court, No. 49D09-1211-JT-42678. The Honorable Marilyn Moores, Judge. The Honorable Larry Bradley, Magistrate. On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1305-JT-468.
ATTORNEYS FOR APPELLANT: Kimberly A. Jackson, Ruth A. Johnson, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Robert J. Henke, David E. Corey, Deputy Attorneys General, Indianapolis, Indiana; Patrick M. Rhodes, Indianapolis, Indiana.
David, Justice. Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.
Court proceedings in which the State seeks to regulate or terminate a parent's
relationship with his or her children are among the most delicate and difficult that judicial officers and attorneys must face. And we have repeatedly emphasized the importance of caution and care in these sorts of cases--from all involved--as the repercussions that flow from them can be devastating to every member of a family.
Here, the State sought to terminate the parental rights of a father and mother whose young child had been removed from their care. On the day of the termination hearing, the mother was incarcerated in a local jail and her attorney sought a continuance until after the mother might be released. The trial court denied this request and held the hearing in the mother's absence--the end result was the termination of her parental rights with respect to her son. Under the facts and circumstances of this case, we conclude that the denial of the motion for a continuance was an abuse of discretion.
Facts and Procedural History
K.W. was born August 22, 2011. On September 27, 2011, the Department of Child Services alleged that K.W. was a Child in Need of Services. On December 15, 2011, the juvenile court adjudicated K.W. a CHINS. Then on November 1, 2012, after repeated instances in which C.C. and K.W.'s father discontinued services, tested positive for drugs, or were arrested, DCS filed a petition to terminate their parental rights with respect to K.W. After several continuances, a TPR hearing was set for April 22, 2013.
C.C. was incarcerated the day of the hearing, and so her attorney moved for another continuance. C.C.'s counsel stated that C.C. was in the Marion County Jail and had been there for a few weeks, but she anticipated being released on May 1 to work release or home detention. DCS objected, as did the guardian ad litem appointed to represent K.W.'s interests. After a brief exchange, the trial court denied C.C.'s motion and held the TPR hearing with her absent (but still represented by her attorney). On May 1, 2013, it issued an order terminating the parental rights of C.C. and K.W.'s father with respect to K.W.
C.C. appealed, arguing that the juvenile court violated her due process rights when it denied her motion to continue and held the termination hearing without her being present. She also claimed that she received ineffective assistance of counsel because her attorney did not request that she be transported from jail to attend the ...