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Right to counsel victory in Indiana

March 13, 2014:

“…she is a client standing alone in a courtroom where her parenting skills and her child’s care and custody are all being challenged, and everyone else but her either is a lawyer or has a lawyer.”

With these words, the Indiana Supreme Court illustrated what is at stake when low-income parents are not provided an attorney in child abuse and neglect cases. The Court’s March 13 decision in G.P. v. Indiana Dept. of Child Services is a victory for the civil right to counsel movement, clarifying parents’ right to counsel in these cases. The Court’s opinion first made it clear that an Indiana statute guarantees a right to a lawyer for all indigent Indiana parents in abuse/neglect cases, reversing several lower courts that had held otherwise.  It then stated that a parent’s decision to waive the right to a lawyer early in the case does not mean the parent loses the right to a lawyer later. Finally, the Court held that if a trial court improperly fails to provide a lawyer to a parent, the parent is not required to prove that the failure was harmful; rather, the appellate court must reverse and send the case back to the trial court. 
Early in the case, the mother on trial declined an appointed attorney, but later requested one. The judge promised to fulfill her request, yet never followed through. Eventually the state filed to terminate her parental rights, and although she was appointed counsel at that point, her rights were terminated.  The Indiana Court of Appeals said it was unsure whether the mother had a statutory right to counsel, but that even if she did, the error was harmless.
At this point, the National Coalition for a Civil Right to Counsel got involved. The NCCRC helped an attorney with Youth Law T.E.A.M. of Indiana frame a petition to the Indiana Supreme Court, recruited Indiana Legal Services to write an amicus brief, and helped with research and editing for that brief. Together the NCCRC and Indiana advocates argued for the right to counsel and explained how denying counsel can never be a harmless error. The team effort had impact, with the Indiana Supreme Court agreeing with arguments put forth by the petitioner and amicus brief. This tremendous decision will be very helpful in other states as the NCCRC seeks to expand the right to counsel.

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