Lack of counsel for father overturns adoption decree

The Indiana Court of Appeals reversed an adoption order Tuesday, finding the child’s biological father was denied due process when the trial court failed to give him notice of his right to be represented by counsel.

Fayette Circuit Court approved stepfather R.C.’s petition to adopt 8-year-old L.C., whom he had known since he and the child’s mother began a relationship in 2013, according to the record in J.C. v. R.C. (mem. dec.) 19A-AD-521.

Father J.C. contested the adoption and appeared pro se at a hearing in January, where he testified that he didn’t think it was a good idea to communicate with his child while incarcerated. He also testified that his last contact with L.C. was about 15 months earlier because he had been under the influence of illegal drugs.

After that hearing, counsel appeared for father and moved to reopen evidence, which was denied. The trial court in late January entered the adoption decree, terminating father’s parental rights, then denied father’s motion to reconsider.

The COA reversed the trial court in a memorandum decision, citing Supreme Court precedent concerning 14^th Amendment due process rights.

“Here, Father argues that the trial court violated his due process rights by not advising him of his right to counsel or appointed counsel to represent him in Stepfather’s adoption proceeding. We agree,” Judge Paul Mathias wrote for the panel. “Ind. Code section 31-32-2-5 provides that ‘[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship.’ And this court had held that a party’s right to counsel, afforded by Indiana Code section 31-32-2-5, also applies in adoption proceedings where, as here, the petitioner seeks to adopt the child over the objection of one of the natural parents.

“…There is nothing in the record before us that shows that the trial court advised Father of his right to counsel or inquired into Father’s ability to retain counsel,” Mathias wrote. “… We conclude that the trial court committed reversible error by failing to advise Father of his right to counsel and his right to appointed counsel should he be found indigent.

“We reverse and remand for the trial court to determine whether Father is indigent and, if so, to appoint counsel to represent him at a new adoption hearing.”