News: Indiana - Appointed Counsel for Termination of Parental Rights Cases

County must pay for parent s appointed attorney

Noting a paradigm shift in parental rights termination cases due to House Enrolled Act 1001, one Indiana Court of Appeals judge believed the Department of Child Services instead of the counties should be responsible for the costs of appointed counsel in these types of proceedings.

But the majority in In Re The Termination of the Parental Relationship of J.G., a minor child; S.G., mother, and J.G., father, and Indiana Department of Child Services v. S.G., No. 32A04-0902-JV-79, saw nothing in the recent revision of the relevant statutes to suggest the General Assembly intended to shift the burden of costs from counties to the DCS. It reversed a trial court order and remanded for further proceedings.

****
The majority agreed after reviewing Indiana Code Section 31-40-1-2, which changed following the 2008 enactment of HEA 1001 that took effect Jan. 1, 2009. Prior to the passage of HEA 1001, the statute stated counties were responsible for paying for appointed counsel in termination proceedings; the revised statute now says DCS shall pay the cost of any child services provided by or through the department for any child or the child's parent, guardian, or custodian.

Chief Judge John Baker and Melissa May concluded court appointed counsel doesn't constitute "services" within the meaning of the statute, relying on I.C. Section 31-40-1-1.5(c), which defines the term "services."

"Those 'services' include programs and types of assistance traditionally offered and overseen by DCS, and it is easy to see the logic in the General Assembly's decision to assign the cost of those services to DCS," wrote Chief Judge Baker. "Legal services, on the other hand, are not the types of services traditionally administered by DCS for children and parents. It is not evident, therefore, that the General Assembly intended that legal services be included in the above definition of 'services.'"

The majority also found instructive the fact that other parts of the code dealing with court appointed attorneys places the burden of paying on counties. It also noted unlike the statute dictating DCS pay for costs associated with guardians ad litem and court appointed special advocates, there's no explicit language in the statute to dictate that DCS pay for appointed counsel in termination hearings.