David, J.
We have always said that a parent’s due process rights are vital during court proceedings aimed at determining whether the parent’s child is a Child in Need of Services. Here, a mother waived her right to counsel at an initial CHINS hearing and her son was found to be a CHINS. At a subsequent CHINS review hearing, the mother requested counsel and the trial court found that she was indigent and entitled to representation—but it failed to actually follow through and appoint an attorney to her case.
After additional CHINS hearings at which the mother remained unrepresented, the Department of Child Services filed an action to involuntarily terminate the mother’s parental rights with respect to her son. At the mother’s request, the trial court appointed counsel to represent her during the TPR process. But even with representation at this stage, her parental rights were terminated and her son has since been adopted by his paternal grandparents. We now assess the impact of the failure to appoint counsel for the mother during the CHINS process.
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J.A. argues that the CHINS court, by telling her it would appoint a lawyer to represent her but failing to do so, denied her constitutional right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution. See U.S. CONST., amend. XIV, § 1. We agree.
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The Court of Appeals asked for clarification on how this provision operates.
We note that the case law does not clearly define how sections 31-32-4-3 and 31-34-4-6 are to be read in conjunction with each other. Is it mandatory to appoint counsel for indigent parents when requested, but only for indigent parents, and only when requested? Is that right waivable, if, after the request, there is no appointment but, as here, the parent does not raise the lack of appointment with the court? Is it fundamental error if the court denies or overlooks the appointment for an indigent parent who has requested counsel? Based on our reading of the current case law, the lack of appointment will be reviewed for an abuse of discretion, but this is an area that would benefit from clarification by the legislature or our supreme court.
In re G.P., 985 N.E.2d at 789 n.2. Owing to its uncertainty, the Court of Appeals therefore relied upon In re M.M. and In re E.P. and, by assessing the Mathews factors, found no abuse of discretion in the trial court’s failure to actually appoint counsel for J.A. Id. at 789–91.
We think the answer is fairly straightforward. To begin with, to the extent any case law holds that a trial court has discretion to appoint counsel for an indigent parent in a CHINS proceeding, those cases are not correct on that point. [Footnote omitted.]
Section 31-34-4-6 is an explicit provision of just such a statutory right, though subject to its own internal qualifications, and is consistent with the operation of the rest of the statutory scheme. And it exists independently of—though informed and influenced heavily by—any constitutionally compelled right to counsel pursuant to the Due Process Clause of the Fourteenth Amendment. Cf. Holmes v. Jones, 719 N.E.2d 843, 846 (Ind. Ct. App. 1999) (“the pauper counsel statute creates an independent right to counsel for indigent litigants”); see also Lassiter v. Dep’t of Social Servs. of Durham Cnty., N.C., 452 U.S. 18, 33 (1981) (“In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution.”). [Footnote omitted.] “Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but also in dependency and neglect proceedings as well.” Id. at 33–34.
Reading the juvenile statutes collectively, Section 31-32-4-1 provides that parents in TPR proceedings are entitled to be represented by counsel, along with “[a]ny other person designated by law.” And one such person “designated by law”—designated by Section 31-34-4-6 specifically—is the indigent parent who requests a court-appointed attorney in a CHINS proceeding and is found by the trial court to be indigent. To the extent the trial court “may” appoint counsel to represent a parent in another proceeding, it would be pursuant to Section 31-32-4-3. It does not have discretion in a circumstance falling under Section 31-34-4-6. [Footnote omitted.]
Section 31-32-4-3 would, however, still give the trial court discretion to appoint counsel, for example, for a parent who perhaps fails to meet the statutory requirements for being indigent but for whom appointed counsel might still be appropriate. Or a trial court could appoint counsel to serve as stand-by counsel for the parent who decides to proceed pro se. These discretionary circumstances might certainly be rarer than the typical parents who either hire their own lawyer or have a public defender appointed, but the statutes appropriately anticipate their occurrences and afford trial courts the flexibility to respond in kind. And appellate review of any denials of these discretionary appointments would still entail the analysis from our prior case law, balancing the Mathews factors against the general presumption against appointed counsel in civil matters. Where those factors overcome the presumption, due process would require appointed counsel, and a trial court would abuse its discretion in deciding otherwise.
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Conclusion
J.A. was denied her statutory right to counsel during the course of the CHINS proceedings below and those proceedings flowed directly into an action to terminate her parental rights and (in a separate action) adopt out her child. We therefore vacate the trial court judgment terminating her parental rights.
Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.