author: PER CURIAM. SULLIVAN, Justice,

text:
    In the Matter of Thomas E.Q. WILLIAMS, Respondent.
    No. 30S00-1101-DI-37.
    Supreme Court of Indiana.
    July 27, 2012.

      Thomas E.Q. Williams, pro se.
    G. Michael Witte, Executive Secretary, Frederick L. Rice, Staff Attorney Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
   Attorney Discipline Action

PER CURIAM.

We find that Respondent, Thomas E.Q. Williams, engaged in attorney misconduct by charging an unreasonable attorney fee to an elderly client, converting funds belonging to the client, and related misconduct, aggravated by his dishonesty in denying under oath that the funds he took from the client as her attorney in fact were for legal services after stating under oath in a prior civil suit that they were for attorney fees. For this misconduct, we suspend Respondent for two years without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and on the post-hearing briefing by the parties. Respondent’s 1972 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const, art. 7, § 4.

Facts

In 1983, M.D. sent Respondent a letter asking him to administer her estate in the event of her sickness or death. M.D. told L.N., who was her niece and closest relative, that Respondent was M.D.’s attorney. In 1984, M.D. moved to an apartment in Westminster Village, a retirement community, and executed a Power of Attorney (“POA”) designating Respondent as her attorney in fact effective upon M.D.’s incompetence. In 1985, M.D. executed a Living Will prepared by Respondent.

In January of 1999, M.D. was transferred to the assisted living portion of Westminster Village. Respondent sent a letter to Westminster Village stating that he would assume certain obligations under the POA. M.D. was later transferred to the Westminster Village’s nursing care facility in frail health and with failing eyesight.

On November 21, 2001, Westminster Village called L.N. and told her that that M.D.’s account was three months past due and that they could not make contact with Respondent. When L.N. was able to reach Respondent, he told her that M.D.’s money was gone. Within days, M.D. revoked Respondent’s POA and executed a new POA appointing L.N. as her attorney in fact. Soon thereafter, L.N. retained counsel to obtain an accounting of M.D.’s assets from Respondent. Under Indiana law, if an accounting is requested in writing by the principal, an attorney in fact is required to deliver an accounting not later than 60 days after the request. See Ind. Code § 30-5-6-4. Counsel retained by L.N. sent numerous letters to Respondent asking for an accounting, but Respondent did not respond.

On October 10, 2002, L.N., on behalf of M.D., filed a complaint against Respondent seeking an accounting and a judgment for any missing or unauthorized expenditures of M.D.’s funds (“the civil suit”). Respondent resisted attempts to obtain an accounting. He filed counterclaims and cross-claims against M.D., L.N., and their counsel, for which the trial court sanctioned him by ordering him to pay attorney fees. After numerous procedural hearings, the Court issued an order on June 23, 2004, directing Respondent to produce an accounting of M.D.’s assets, and Respondent filed what he termed an accounting the following month.

Respondent testified in the civil suit that he was hired “as a lawyer to be [M.D.’s] attorney in fact.” He initially charged M.D. $100 per hour for his time but later raised the rate to $160 per hour on learning that a probate court approved this rate for other lawyers. He testified that he believed his services were necessary for M.D.’s legal needs and that his fees were reasonable based on the number of years he had been an attorney and the fees charged in the area. Respondent testified that he wrote checks addressed to himself or to “Cash” from M.D.’s checking account to pay himself for his services. Entries on Respondent’s accounting showing payments to Respondent all bear the notation “partial atty fee” followed by a number of hours. Aside from the checks, Respondent had no written documentation to memorialize any work performed for M.D.

On May 26, 2005, the trial court issued its decision, which included the following findings of fact: (1) Respondent failed to supply an accounting as required under Indiana Code § 30-5-6-4; (2) Respondent failed to keep records of his use of M.D.’s funds and of the legal services rendered on behalf of M.D.; (3) between January 1999 and November 2001, Respondent billed M.D. for a total of 546 hours of legal services, which included an inordinate amount of unproductive and nonprofessional work and for which he paid himself fees of $93,500; (4) there was no conceivable reason for the fees charged, which consumed nearly one-third of M.D.’s modest estate of around $300,000; and (5) Respondent committed . what amounted to constructive fraud upon M.D. Estimating Respondent’s proper fee to be $26,208, the trial court awarded damages of $67,292 in favor of M.D. Respondent has paid this judgment, which, L.N. testified, was consumed by attorney fees and medical reimbursement obligations.

L.N. filed a grievance against Respondent with the Commission. In his response, Respondent stated that he charged “attorney fees” for “professional” services rendered as M.D.’s attorney in fact. He described M.D. as a “long time client.” He stated that M.D. never objected to his “attorney fees” or the rate on which they were based.

On January 24, 2011, the Commission filed its verified complaint against Respondent. In his answer, Respondent—contrary to his position in the civil case and in his initial response to the grievance—denied that he was acting as M.D.’s attorney during the relevant period. Rather, for the first time, he claimed that he used M.D.’s funds “to produce for her a gospel following her near death and other writings or perhaps publishing with M.D.’s funds since these things may be something a little different from what a usual trusted friend would do with funds.” In his answer, Respondent also made the following assertions:

• M.D. knew him primarily as a writer and as her former lawyer during the time period of the complaint. He made it clear to M.D. that he had left practice in the early 1990’s to take up writing.
• M.D. voluntarily assisted him financially with books he published during this period.
• His activities as a writer are not governed by the Rules of Professional Conduct.

During the hearing in this disciplinary case, Respondent again maintained that the amounts he received from M.D. were for his work in writing and publishing his books, including an “American Folk Gospel” and a biography of an Indiana evangelist.

Discussion

We reject Respondent’s attempt to deny that the money he paid himself from M.D.’s funds were for attorney fees in the face of his own repeated contrary assertions in the civil suit and his response to M.D.’s grievance. We conclude that in making these payments to himself, he was charging M.D. attorney fees for purported legal services and that he is subject to the Rules of Professional Conduct and Admission and Discipline Rules.

The Commission charged Respondent with violating the following Indiana Professional Conduct Rules (as effective at the time of the alleged misconduct):

1.5(a): Charging an unreasonable fee.
1.7: Representing a client when there is a concurrent conflict of interest due to the lawyer’s personal interests.
1.8(a): Entering into a business transaction with a client (unilaterally raising his fee) unless the transaction is fair and reasonable, the terms are fully disclosed in writing, the client is given an opportunity to seek the advice of independent counsel, and the client consents in writing to the transaction.
1.15: Failure to render promptly a full accounting regarding a client’s property upon request by the client.
8.4(b): Committing a criminal act (conversion) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.

We find clear and convincing evidence that Respondent violated Rules 1.5(a), 1.7, 1.8(a), and 1.15. Regarding the charge that Respondent violated Rule 8.4(b), we note that Respondent wrote checks to himself totaling approximately $100,000 from his frail and elderly client’s account, consuming approximately one-third of her estate. He had no written documentation to memorialize any work performed for the client. Although he first maintained that his withdrawal of the $100,000 was for legal services performed, he changed his explanation mid-litigation to claim that they constituted her voluntary assistance to him as an author. (In this regard, he says that he left law practice in the early 1990s to take up writing.) We find Respondent’s abandonment of his claim that the $100,000 was for legal services, combined with his wholly incredible claim that it was a gift, sufficiently probative of the Commission’s charge that Respondent violated Rule 8.4(b) by committing a criminal act (conversion) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.

The Commission also charged Respondent with violating the following provisions of the Indiana Admission and Discipline Rules:

23(29)(a)(2): Failure to maintain and preserve clear record of date, amount, source, and explanation for funds held in trust.
2S(29)(a)(5): Making withdrawals from a trust account without notation of the purpose and/or making withdrawals from a trust account by checks payable to “cash.”

Although the recordkeeping requirements of Admission and Discipline Rule 23(29)(a) apply to “funds held in any fiduciary capacity in connection with a representation,” it is unnecessary to determine whether the detailed and stringent requirements of this rule apply in this case. Rather, it is sufficient to hold that Respondent’s nearly complete lack of even rudimentary records of his dealings with M.D.’s property under the POA is a fact in aggravation of his professional misconduct.

We also find the following additional facts in aggravation: (1) Respondent’s groundless attacks on M.D. and others associated with her when she attempted to obtain the accounting to which she was legally entitled; (2) his dishonesty in denying under oath in this case that the funds he took from M.D. were for legal services after he repeatedly and unequivocally stated under oath in the civil suit that they were for attorney fees; and (3) his lack of remorse for any of his misconduct.

The ABA Standards for Imposing Lawyer Sanctions, to which we frequently look for guidance regarding appropriate discipline, provide:

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury ... to a client.

Disbarment is generally appropriate when a lawyer, without the informed consent of client(s) ... engages in representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious ... injury to the client....
Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer ... and causes serious ... injury to a client....

ABA Standards for Imposing Lawyer Sanctions 4.11, 4.31(a), & 7.1. We conclude that each of these standards obtains in respect of the matter before us.

Nevertheless, we conclude that disbarment is not an effective discipline in the unique circumstances of this case. According to Respondent, he has essentially withdrawn from the practice of law since the early 1990’s. Thus, from his vantage point, disbarment is a non-event—it would simply prohibit him from doing that which he has not done for nearly two decades. And because disbarment is permanent, he would have no incentive to come to grips with the pain and suffering he has wrought.

In lieu of disbarment, we choose to follow the hearing officer’s recommendation of suspension without automatic restatement, and conclude that a minimum period of two years is warranted. Then, to regain his privilege to practice law and to reestablish his good name as an attorney, Respondent would be required to petition this Court for reinstatement, with the burden of demonstrating by clear and convincing evidence remorse for his unconscionable misconduct as well as his rehabilitation and fitness to practice law. See Admis. Disc. R. 23(4)(b). This could include further reimbursement of the extracted fees. Whether he would ever be able to carry this burden is a matter of speculation. However, this Court’s disposition puts the onus of responsibility where it belongs—on Respondent’s shoulders.

Respondent attempts to frame the issue before the Court as “whether or how severely should a Hoosier writer who is also a licensed lawyer be disciplined for accepting patronage from a client on a non-legal writing project ... without rendering an accounting that the legal professional rules would require.” He argues that the Commission is asking the Court to “condemn a writing not the writer,” and refers to this proceeding as a “persecution” for being a follower of Jesus. Respondent’s attempt (after his initial defense failed in the civil case and initial response to the grievance) to allege that the Commission is attacking his personal beliefs and the contents of his books is disingenuous to the extreme. They play no role the Court’s conclusion that he should be disciplined for the professional misconduct described above.

Conclusion

The Court concludes that Respondent violated the Indiana Professional Conduct Rules by charging an unreasonable attorney fee to M.D., representing her when there was a conflict of interest due to his personal interests, unilaterally raising his fee without required client safeguards, converting her assets, and failing to render a prompt and full accounting upon request. Respondent’s misconduct is aggravated by his groundless attacks on M.D. and others associated with her, his dishonesty in denying under oath that the funds he took from M.D. were for attorney fees, and his lack of remorse.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, beginning September 7, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date-of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

DICKSON, C.J., and RUCKER and DAVID, JJ., concur.

SULLIVAN, J., dissents with separate opinion, with which MASSA, J., concurs.

SULLIVAN, Justice,

dissenting.

The Court says that each of three ABA Standards for Imposing Lawyer Sanctions calling for disbarment “obtains” in this case but then imposes a lesser sanction. I believe that disbarment is the appropriate sanction here and so respectfully dissent.

I concur with the Court that Respondent violated Rules 1.7 and 1.8(a) concerning lawyer-client conflicts of interests and violated Rule 8.4(b) by committing a criminal act (conversion) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. While the Court concludes that it should allow him the opportunity to seek to return to the practice of law, I believe Respondent has forfeited any such opportunity. After all, he wrote checks to himself totaling approximately $100,000 from his frail and elderly client’s account—consuming approximately one-third of her estate—without any written documentation to memorialize any work performed for the client. And although he first maintained that his withdrawal of the $100,000 was for legal services performed, he changed his explanation mid-litigation to claim that they constituted her voluntary assistance to him as an author. I would not provide an opportunity to return to practice to a lawyer who, after helping himself to his frail and elderly client’s money, says the money was a gift after his first explanation that it constituted payment for legal services was rejected by a court.

MASSA, J., concurs.

      . See, e.g., Matter of Riddle, 700 N.E.2d 788 (Ind. 1998) (disbarring respondent); Matter of Frosch, 643 N.E.2d 902 (Ind.1994) (also disbarring respondent).


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    In the Matter of the Termination of the Parent-Child Relationship of H.K., Ta.K., and Ty.K., (Minor Children), and R.K., their Mother, and D.K., their Father, R.K. (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    No. 42A05-1109-JT-548.
    Court of Appeals of Indiana.
    June 15, 2012.
    Stephen P. Murphy, Jr., Law Offices of Stephen Murphy, LLC, Evansville, IN, Attorney for Appellant.
    Robert J. Henke, Indiana Department of Child Services, Indianapolis, IN, Gara U. Lee, Indiana Department of Child Services, Vincennes, IN, Attorneys for Appel-lee.
   OPINION

BAILEY, Judge.

Case Summary

R.K. (“Mother”) appeals the involuntary termination of her parental rights to her children, H.K., Ta.K, and Ty.K. The sole issue on appeal is whether the termination order should be set aside because the Indiana Department of Child Services failed to provide Mother with adequate notice of the termination hearing.

We remand with instructions.

Facts and Procedural History

On May 9, 2011, the local Knox County Office of the Indiana Department of Child Services (“KCDCS”) filed petitions seeking the involuntary termination of Mother’s parental rights to H.K., Ta.K., and Ty.K., who had previously been adjudicated children in need of services (“CHINS”). During a case conference on May 12, 2011, Mother was personally served with copies of the involuntary termination petitions, summons, and order setting a consolidated initial hearing for all three termination cases for June 1, 2011. Entries in the trial court’s Chronological Case Summary (“CCS”) under each cause number for all three children indicate that copies of these documents had also been placed in the Knox County Sheriff Department’s “box” for service on both parents. The documents were later returned as undeliverable.

The initial hearing on the termination petitions was held as scheduled on June 1, 2011. Mother failed to appear but was represented by counsel. Mother also had not visited with the children since May 17, 2011, and had ceased all communications with the KCDCS case manager and service providers. At the conclusion of the initial hearing, the trial court scheduled an evidentiary hearing pertaining to all three termination petitions for August 29, 2011. In addition, the court assigned new counsel, Donita Farr, to represent Mother throughout the remainder of the termination proceedings.

Approximately three weeks before the termination hearing, attorney Farr filed a Notice To The Court indicating she had made three unsuccessful attempts to locate Mother. The consolidated hearing on all three termination petitions was held as scheduled on August 29, 2011. Mother failed to appear.

At the commencement of the termination hearing, attorney Farr made an oral motion to continue the termination hearing, arguing KCDCS had failed to provide Mother with proper notice of the hearing. In so doing, Farr informed the trial court that she had finally spoken with Mother earlier that same morning and that Mother, who had been residing in Florida, indicated she “was unaware of the proceedings today” and “had never received any paperwork regarding the termination or the termination proceedings.” Tr. at 26-27.

KCDCS objected to the requested continuance. In support thereof, counsel for KCDCS, Gara Lee, emphasized that the trial court’s records confirm Mother was “personally served with the Petition in these matters on May 12, 2011.” Id. at 27. Attorney Lee further argued:

[KCDCS] attempted to notify [Mother] every way we could. Ms. Ford [KCDCS case manager] mailed notice of today’s hearing to [Mother’s] last known address ... which came back. [Ford] diligently tried to locate [Mother], finally did so on Fridayt,] and I believe that’s the only reason that [Attorney Farr] received any kind of contact from [Mother] ... this morning. I also believe that the testimony will show that after that May 12th date, when [Mother] was personally served, that there were further conferences at [KCDCS] that [Mother] was a part of where this matter was discussed and so I think she’s fully aware of what’s going on.

Id. at 27-28. In denying attorney Farr’s motion to continue the termination hearing, the trial court stated:

[G]iven the fact that the file shows that [Mother] was personally notified of the initial hearing date on the termination [case] ... [and] has moved away and has, essentially, not participated at all in communicating with her attorney in any way, shape[,] or form between the appointment of Ms. Farr ... at the initial hearing and this date, given the fact that I think that we really need to move forward with some resolution, the Court determines that the motion to continue should be denied....

Id. at 28-29. The trial court thereafter proceeded with the termination hearing.

During the termination hearing, KCDCS case manager Susan Ford testified that there were repeated periods of time throughout the underlying CHINS and termination cases during which KCDCS was unable to locate or contact Mother despite the trial court’s dispositional order directing Mother to maintain regular contact with KCDCS and to inform KCDCS, within five days, of any change in address, telephone number, or household composition. Case manager Ford also confirmed Mother had not contacted KCDCS or any of her service providers since she attended a case conference in May 20, 2011. Although Ford informed the trial court that personal service of the involuntary termination petition and summons pertaining to the initial hearing in June 2011 was achieved on Mother, Ford did not testify as to whether KCDCS ever provided Mother with notice of the August 2011 evidentiary hearing. Nor was there any other testimony or documentary evidence submitted during the termination hearing to show that Mother was ever provided with notice of the August 2011 termination hearing.

At the conclusion of the termination hearing, the trial court found that “notice has been provided to all persons required by statute in the most effective means and under the circumstances.” Id. at 71. The court further determined that although Mother informed her attorney that morning that she was unaware of the termination proceedings, the documents in the court’s files “indicating personal service of these matters,” and testimony from case manager Ford regarding the May 2011 case conferences Mother attended during which “there had been discussions with [Mother] about the significance and the importance of the June 1st initial hearing that Mother failed to attend” indicates otherwise. Id.

Later the same day, the trial court entered its written judgment terminating Mother’s parental rights to all three children. Mother now appeals.

Discussion and Decision

Mother’s sole argument on appeal is that she is entitled to reversal because KCDCS failed to provide her with proper notice of the August 2011 termination hearing. Presumably due to the significance of the interests at stake, our legislature has enacted an additional notice requirement in involuntary termination proceedings. Specifically, Section 31-85-2-6.5 provides, in relevant part, that “at least ten (10) days before a hearing on a petition or motion under this chapter ... the person or entity who filed the petition to terminate the parent-child relationship [here, KCDCS] ... shall send notice of the review to ... [t]he child’s parent .... ”

“Compliance with the statutory procedure of the juvenile code is mandatory to effect termination of parental rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind.Ct.App.2005). Although statutory notice “is a procedural precedent that must be performed prior to commencing an action,” it is not “an element of plaintiffs claim.” Id. Failure to comply with statutory notice is thus “a defense that must be asserted.” Id. Once placed in issue, “the plaintiff [here, KCDCS] bears the burden of proving compliance with the statute.” Id.

Because Mother claimed that KCDCS failed to provide her with notice of the August 2011 termination hearing, the burden has shifted to KCDCS to prove compliance with Indiana Code section 31-35-2-6.5. The trial court’s CCS makes clear that an order was “entered” on June 3, 2011, following the court’s consolidated initial hearing in the termination cases. Appellant’s Appendix p. 4. The specific language of the trial court’s order, however, was not included in the CCS entry, and the CCS does not indicate whether the trial court’s order was ever provided to Mother and/or whether the order included the date of the final evidentiary hearing scheduled in August 2011.

Curiously, although KCDCS entered into evidence copies of the involuntary termination petitions and summonses pertaining to the June 2011 initial hearing that were mailed to Mother’s last known address, the record on appeal is devoid of any evidence showing KCDCS likewise attempted to serve Mother with notice of the August 2011 termination hearing. In addition, case manager Farr never testified that notice of the August 2011 termination hearing was mailed to Mother’s last known address as suggested by attorney Lee, and the trial court’s explanation for denying Mother’s motion to continue the termination hearing quoted above seems to focus on KCDCS’s notice to Mother regarding the June 2011 initial hearing, rather than the August 2011 evidentiary hearing.

Although Indiana Code section 31-35-2-6.5 does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component, KCDCS was nevertheless required by Indiana Code section 31-35-2-6.5 to send notice of the termination hearing to Mother’s last known address at least ten days before the hearing. See id.; also In re C.C., 788 N.E.2d 847, 851 (Ind.Ct.App.2003) (concluding that notice sent to Father’s last known address at homeless shelter was not defective under Indiana Code section 31-35-2-6.5 even though case manager knew father no longer lived there because it was father’s last known address and statute does not require compliance with Ind. Trial R. 4), trans. denied; In re D.L.M., 725 N.E.2d 981 (Ind.Ct.App.2000) (concluding that notice to parent’s attorney alone does not satisfy notice requirements of Indiana Code section 31-35-2-6.5, which specifically requires party petitioning for termination to send notice of termination hearing to child’s parent). Unfortunately, it is not clear from the record whether KCDCS sent proper notice of the August 2011 termination hearing to Mother’s last known address, and this court cannot simply rely upon attorney Lee’s unsubstantiated comment to the trial court that “Ms. Ford mailed notice of today’s hearing to [Mother’s] last known address ... which came back” for purposes of determining on appeal whether KCDCS fulfilled its statutory notice obligations set • forth in Indiana Code section 31-35-2-6.5. Transcript at 27.

We therefore conclude that the most appropriate remedy is to remand this cause to the trial court with instructions that the court conduct a hearing to determine (1) whether KCDCS complied with the statutory notice mandates of Indiana Code section 31-35-45-6.5 by properly notifying Mother of the August 29, 2011 termination hearing and (2) if the notice requirements of Indiana Code 31-35-2-6.5 were not met, whether, this procedural irregularity violated Mother’s due process rights under the facts of this case. See T.W., 831 N.E.2d at 1247 (concluding that even assuming, arguendo, that Indiana Department of Child Services failed to provide mother with proper notice of termination hearing, procedural irregularity did not violate mother’s due process rights under specific facts of case where mother appeared at termination hearing and was represented by counsel).

Remanded with instructions for further proceedings not inconsistent with this opinion.

ROBB, C.J., and MATHIAS, J., concur.

      . KCDCS explains in its Appellee’s Brief that the ''box” notation is a reference to the Knox County courthouse mailbox and/or internal courthouse procedure used to provide documents for service on parties. See Appellee’s Br. p. 4, n5.

      . We observe that the children’s biological father, D.K., voluntarily relinquished his parental rights to all three children at the commencement of the August 2011 termination hearing. Father does not participate in this appeal. Consequently, we limit our recitation of the facts to those pertinent solely to Mother's appeal. The trial court’s termination order as it relates to Father remains wholly intact and unaffected by our decision today.


author: NAJAM, Judge.

text:
    T.B., Appellant-Respondent, v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner.
    No. 79A04-1110-JT-594.
    Court of Appeals of Indiana.
    June 29, 2012.

      Michael B. Troemel, Lafayette, IN, Attorney for Appellant.
    Craig Jones, Indiana Department of Child Services, Lafayette, IN, Robert J. Henke, Indiana Department of Child Services, Indianapolis, IN, Attorneys for Ap-pellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

T.B. (“Mother”) appeals the involuntary termination of her parental rights to her children and asks this court to adopt a policy that prohibits the involuntary termination of parental rights for all mentally retarded parents. We affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Mother is the biological mother of N.B., born in April 2005, and M.B., born in August 2008. The facts most favorable to the trial court’s judgment reveal that in June 2010 the local Tippecanoe County Office of the Indiana Department of Child Services (“TCDCS”) received a report that Mother had left N.B. and M.B. at home in the care of a mentally handicapped thirteen-year-old sitter for several hours. During its assessment, the TCDCS case manager observed the family home to be in a state of disarray, the children appeared dirty, N.B. and M.B. had not eaten since early that morning, and M.B. had a broken foot that was wrapped in dirty bandages. Five-year-old N.B. also informed the case worker that Mother had left him home alone on several prior occasions. In addition, it was discovered that Mother had failed to follow the Emergency Room doctor’s discharge orders directing her to obtain follow-up medical care for M.B.’s foot. Based on this assessment, TCDCS took both children into emergency protective custody.

The following day, TCDCS filed petitions alleging N.B. and M.B. were children in need of services (“CHINS”). Mother admitted to the allegations of the CHINS petitions, and the children were so adjudicated. In July 2010, the trial court issued a dispositional order directing Mother to successfully complete a variety of tasks and services designed to improve her parenting abilities and to facilitate reunification of the family. Among other things, Mother was ordered to: (1) submit to both a mental health evaluation and a medication assessment; (2) engage in intensive home-based case management services; (3) participate in individual therapy; (4) complete parenting education classes; (5) visit regularly with the children; (6) obtain safe and stable housing; and (7) maintain a stable, legal source of income sufficient to support the family.

Although Mother began participating in several reunification services following the children’s initial removal, her participation throughout the CHINS case was sporadic and ultimately -unsuccessful. For example, in August 2010 Mother submitted to both a biopsychological assessment with Dr. Martin Abbert and a psychological evaluation with Dr. Jeff Vandewater-Percy in September 2010. The results of Dr. Vandewa-ter-Percy’s evaluation indicated that Mother has poor reasoning skills, poor memory and/or attention skills, and her overall cognitive functioning is in the “low” to “well below average” range of functioning. Exhibits, Vol. II, Petitioner’s Ex. 6. Dr. Vandewater-Percy also reported that Mother “presents as a chronically depressed young mother with a highly ambivalent style of relating to others that probably originates from her reported history of rejection and abuse.” Id. Dr. Vandewa-ter-Percy further observed that although Mother is “very reliant on others for support, guidance, and affirmation,” she nevertheless is “exceedingly mistrustful” and “suspicious” of others and thus her “relationships are likely to be unstable with fluctuating degrees of emotional investment.” Id. Dr. Abbert’s report to the court confirmed that Mother has “Borderline Intellectual]” functioning and suffers with “Cyclothymia” with “cycling several times a day.” Id., Petitioner’s Ex. 10. Dr. Abbert therefore recommended that Mother continue to take her prescribed antidepressant medication, Lexapro, and wrote additional prescriptions for Vyvanse and Lamictal.

Despite her ongoing struggles with depression and other significant mental health issues, Mother refused to take her medications as prescribed. Therapists and other service providers also consistently reported that Mother was not committed to the therapeutic process and cancelled and/or failed to show for more than half of both her individual therapy sessions and home-based counseling appointments. Although the children were returned to Mother’s care for a trial home visit in December 2010, after she obtained independent housing, Mother continued to be non-compliant with many court-ordered services and actually began to regress in services. For example, Mother was not utilizing age-appropriate discipline methods, refused to follow recommended parenting techniques, allowed unapproved persons with past criminal records to provide childcare for the children, and became involved in a new romantic relationship with an individual whom she allowed to move into the family home only days after meeting the individual and without obtaining TCDCS’s prior approval.

Following an emergency modification hearing in April 2011, the children were again removed from Mother’s care. This removal was due in large part to the numerous safety concerns that remained in the home, as well as Mother’s continuing inability to adequately provide for the children’s basic needs. After the children’s second removal, TCDCS continued to offer reunification services to Mother, including intensive home-based case management services, individual therapy, and supervised visitation with the children. Mother nevertheless was unable to sustain any progress in her overall ability to properly care for herself and for her children. Specifically, Mother continued to miss approximately seventy-five percent of her scheduled individual therapy sessions and fifty percent of her home-based counseling appointments, failed to maintain stable housing and employment, refused to take her prescription medication, and was repeatedly dishonest with service providers. Mother also visited the Emergency Room several times per week for routine medical issues, complained of being chronically tired, and refused to follow physicians’ recommendations. As for scheduled visits with the children, Mother remained incapable of maintaining appropriate discipline during visits, discussed inappropriate adult issues in front of the children, and oftentimes ended visits early.

TCDCS eventually filed petitions seeking the involuntary termination of Mother’s parental rights to both children in June 2011. An evidentiary hearing was later held in August 2011. During the termination hearing, TCDCS presented substantial evidence concerning Mother’s failure to successfully complete a majority of the trial court’s dispositional goals, including (1) successfully participating in individual counseling to address her chronic depression and other mental health issues; (2) taking her own medications as prescribed; (3) achieving stable and independent housing and employment; (4) learning and incorporating age-appropriate discipline techniques; and (5) demonstrating she is capable of establishing a safe, sanitary, and stable home environment for herself and the children. In so doing, TCDCS introduced evidence establishing Mother failed to maintain steady employment during the underlying proceedings, lost her HUD status in July 2011, and was forced to move out of her apartment the week before the termination hearing. Consequently, Mother was living with and financially dependent upon her most recent boyfriend.

TCDCS also presented evidence that Mother had recently been arrested, twice, for driving without a valid driver’s license. She received a thirty-day suspended sentence in July 2011, and was facing an additional charge of Driving While Suspended at the time of the termination hearing. In addition, Mother’s own testimony during the termination hearing that genetic testing confirmed she has “alien genes” further demonstrated Mother’s ongoing distorted thinking. Transcript at 113.

As for the children, TCDCS presented substantial evidence establishing that when N.B. was removed from Mother’s care he presented as “very weepy,” “very whiny,” “very agitated,” and “very shut down.” Transcript p. 58. The evidence further established that N.B.’s emotional well-being and performance in school “improved enormously” following his removal from Mother’s care and placement in a supportive and structured foster home. In addition, the nightmares N.B. experienced “every single night” while in Mother’s care stopped happening once N.B. was placed in foster care. Id. at 64. Testimony from the children’s therapist also revealed that neither N.B. nor M.B. was bonded with Mother. Finally, both the TCDCS case manager and court-appointed special advocate (“CASA”) recommended termination of Mother’s parental rights as in the children’s best interests, and the children’s therapist informed the trial court that both children needed to be protected from the harm and chronic neglect that they suffered while in Mother’s care.

At the conclusion of the termination hearing, the trial court took the matter under advisement. On September 28, 2011, the trial court entered its judgment terminating Mother’s parental rights to N.B. and M.B. Mother now appeals.

DISCUSSION AND DECISION

Initially, we note our standard of review. Here, in terminating Mother’s parental rights, the trial court entered numerous detailed findings and conclusions. When a trial court’s judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). If the evidence and inferences support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.App.1999).

Before an involuntary termination of parental rights can occur in Indiana, the State is required to allege and prove, among other things:

(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

Ind.Code § 31-35-2-4(b)(2) (2010). The State’s “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’ ” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.2009) (quoting Ind.Code § 31-37-14-2 (2008)). Moreover, under Indiana Code section 31-35-2-8(a), if the court does not find that the allegations in a petition are true, then the court shall dismiss the petition.

Here, the trial court made numerous thoughtful findings regarding Mother’s ongoing inability and/or unwillingness to meet her parental responsibilities notwithstanding TCDCS’s provision of “exhaustive home based services” designed to “thoroughly address[ ]” Mother’s mental health and intellectual functioning throughout the entirety of the underlying CHINS and termination proceedings. Appellant’s App. at 37-8, 40. Despite the wealth of services provided to Mother for more than one year, the trial court determined that, at the time of the termination hearing, Mother remained incapable of providing the children with a safe and stable home environment. Specifically, the court found as follows:

28. Mother continues to struggle in almost all aspects of her life. Mother does not appear to be able to take care of herself. The children have suffered from chronic neglect in Mother’s care. Even after sixteen (16) months of services[,] Mother does not have the capacity to take care of the children on a daily basis.
29. [The] Court finds that services and treatment were provided to Mother in a concrete manner consistent with her mental health and intellectual challenges. While Mother will continue to have mental health and intellectual challenges, her failure to comply with treatment, distorted thinking, and ongoing deception with providers continues to serve as a barrier to successful reunification with her children. The Court finds that the children would most likely face future harm in Mother’s care.
32. The Court finds, as a matter of law, that after more than sixteen (16) months of rendering services of various kinds with different providers to this family that there is not any basis for any reasonable belief that the circumstances which resulted in the removal of the children from [Mother’s] care or the reasons for continued placement outside the home will be remedied. Mother has demonstrated a continuing pattern of noncompliance with her services, and an over-riding failure to place her children as a priority. Mother does not indicate that she has a basic understanding or belief of the harm her children have suffered given her choices and instabilities in her own life. Mother, therefore, is unable to provide a minimally safe, secure, and stable home for these children.
35. The Court further finds that [TCDCS] has an acceptable, reasonable, appropriate and satisfactory plan for the care and treatment of the children. The children can be adopted. The plan is that they be adopted together.
36. The Court finds it would be in the best interests of the child for the rights of the natural Mother, [T.B.] and natural children, [N.B.] and [M.B.], [to] be terminated so that the children can be placed for adoption at the earliest possible time.

Appellant’s App. at 40-41.

Mother does not challenge the evidence supporting any of the trial court’s specific findings cited above. In fact, Mother confirms in her Appellant’s Brief that TCDCS provided “massive services” to Mother during the underlying proceedings. Appellant’s Brief at 19. Rather, Mother’s sole argument on appeal is that “mentally retarded parents should be immune from losing their parental rights.” Appellant’s Brief at 18.

In making this argument, Mother compares involuntary termination proceedings to criminal proceedings. She then asks this court to “assum[e] arguendo” that the result of a termination proceeding is actually a “penalty” to the parent, rather than a decision made in the best interests of the child, and thereafter posits that such a penalty violates the prohibition against cruel and unusual punishment found in Article 1, Section 15 of the United States Constitution because the ultimate result is to make the child “legally dead” to the parent. Id. at 19. Mother then states that such a result is not proportional to the nature of the offense when dealing with mentally disabled parents and asks this court to “examine the practice” of terminating the parental rights of a parent who is mentally retarded “and adopt a prohibition against such practice.” Id. at 21.

It is not a proper function of this court to ignore the clear language of a statute and, in effect, rewrite the statute in order to render it consistent with a particular view of sound public policy. See, e.g., Robinson v. Monroe Cnty., 663 N.E.2d 196 (Ind.Ct.App.1996) (concluding that court could not ignore unambiguous language of statute’s exemption of particular class of individuals from abiding by certain safety requirement regardless of court’s view as to the wisdom of the exemption). Moreover, contrary to what Mother would have this court “assume arguendo,” the Indiana Supreme Court has made clear that the “purpose of terminating parental rights is not to punish parents, but to protect the children.” Egly v. Blackford Cnty. Dep’t of Public Welfare, 592 N.E.2d 1232, 1234 (Ind.1992) (citing Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Our Supreme Court has further explained that “[a]l-though parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their responsibilities as parents.” Egly, 592 N.E.2d at 1234. This includes situations not only where the child is in immediate danger of losing his life, “but also where the child’s emotional and physical development are threatened.” Id. In addition, it is well-settled that “mental retardation, standing alone, is not a proper ground for termination of parental rights.” Id. It therefore stands to reason that the converse should also be true. That is to say that mental retardation, standing alone, is not a proper ground for automatically prohibiting the termination of parental rights.

For all these reasons, we decline Mother’s invitation to depart from the clear and unambiguous language of Indiana’s termination statute in order to judicially legislate an exception whereby mentally handicapped parents are immune from involuntary termination proceedings. Moreover, because the trial court’s unchallenged findings clearly and convincingly support its ultimate decision to terminate Mother’s parental rights to N.B. and M.B., we find no error. See McBride v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 198-199 (Ind.App.2003) (stating that a judgment is clearly erroneous only when it is unsupported by the findings and conclusions entered on those findings); see also In re E.S., 762 N.E.2d 1287, 1290 (Ind.Ct.App.2002) (concluding that when evidence shows emotional and physical development of child in need of services is threatened, termination of parent-child relationship is appropriate).

Affirmed.

RILEY, J., and DARDEN, J., concur.

      . N.B.'s biological father is B.O. M.B.’s biological father is unknown. The parental rights of both fathers were involuntarily terminated by the trial court in its August 2011 judgment. Neither father participates in this appeal. We therefore limit our recitation of the facts to those pertinent solely to Mother’s appeal.

      . Unfortunately, the pages of the volumes of Exhibits submitted on appeal are not enumerated. We therefore are unable to provide a specific page number when citing to the exhibits throughout this opinion.

      . Cyclothymia, also known as cyclothymic disorder, is a mild form of bipolar disorder in which a person has mood swings over a period of years that range from mild depression to euphoria and excitement.

      .Vyvanse is a prescription medication used to treat the symptoms of attention deficit hyperactivity disorder. Lamictal is a prescription medication that is approved for use in the treatment of epilepsy and bipolar disorder.

      . We observe that Indiana Code Section 31-35-2-4 was amended by Pub.L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case.


text:
    In the Matter of the ADOPTION OF N.W.R., M.R., Appellant, v. R.B. and R.B. and Indiana Department of Child Services, Appellees.
    No. 36A01-1109-AD-407.
    Court of Appeals of Indiana.
    July 10, 2012.

      Bruce D. Brattain, Mario Garcia, Brattain & Minnix, Indianapolis, IN, Attorneys for Appellant.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

M.R. appeals the trial court’s order granting a petition to adopt N.W.R. (or “the child”) filed by Rg.B. and Rb.B. (“Foster Parents”) following an evidentia-ry hearing. M.R. presents the following issues for review:

1. Whether the trial court abused its discretion when it denied a motion filed by the Indiana Department of Child Services (“DCS”) to withdraw its consent to the adoption by Foster Parents.
2. Whether the trial court abused its discretion when it granted Foster Parents’ adoption petition.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

N.W.R. was born on November 15, 2009, and is the biological son of B.T. and J.R. When N.W.R. was seventeen days old, DCS filed a petition alleging the child to be a child in need of services (“CHINS”) and placed him with Foster Parents. On December 3, 2009, the trial court adjudicated N.W.R. to be a CHINS.

Shortly after DCS placed N.W.R. with Foster Parents, M.R., the child’s biological paternal aunt (“Aunt M.R.”), learned that the child had been removed from his biological parents. In December 2009, Aunt M.R. asked DCS to place the child with her in East Chicago. N.W.R.’s three older siblings had already been placed with her. Those siblings were five years old, four years old, and three years old at the time of the instant final adoption hearing. DCS did not change the child’s placement from Foster Parents’ home and later informed Aunt M.R. that the child’s permanency plan was reunification with the biological parents. DCS also told Aunt M.R. that N.W.R.’s biological maternal aunt had expressed an interest in adopting the child.

Aunt M.R. persisted in contacting DCS and, in early 2010, the department agreed to allow Aunt M.R. and the siblings to have visitation with N.W.R. beginning May 2010. Short visitations began that month in Lebanon. By November 2010, the visitations had increased to weekend visitation, and by the time of the December 9, 2010, hearing, Aunt M.R. had visited N.W.R. for at least 200 hours.

The parental rights of N.W.R.’s biological parents were terminated by September 2010, at which time Foster Parents filed a petition to adopt the child. DCS executed its consent to the adoption on September 15, 2010. But thirty days later, on October 14, DCS filed a motion to intervene in the adoption proceedings and a motion to withdraw its consent. At a hearing on December 6, the trial court granted DCS’ motion to intervene and heard evidence on its motion to withdraw consent. On December 9, Aunt M.R. filed a petition to adopt N.W.R. On December 9, the trial court consolidated the competing adoption petitions and heard additional evidence on DCS’ motion to withdraw consent. On December 22, the trial court issued its order denying DCS’ motion to withdraw consent.

On July 11, 2011, the trial court held a final hearing on the consolidated adoption petitions. On August 5, the court issued its decree granting Foster Parents’ petition to adopt N.W.R. Aunt M.R. now appeals.

DISCUSSION AND DECISION

Standard of Review

In general, when an adoption has been granted, we consider the evidence most favorable to the trial court’s decision and the reasonable inferences that can be drawn therefrom to determine whether the evidence is sufficient to support the judgment. In re Adoption of S.A., 918 N.E.2d 736, 740-41 (Ind.Ct.App.2009), tram, denied. We will not disturb the trial court’s decision in an adoption proceeding unless the evidence at trial led to but one conclusion and the trial court reached an opposite conclusion. Id.

However, Foster Parents have not filed an appellee’s brief. Thus, we will not undertake the burden of developing arguments for the appellee. Painter v. Paint er, 773 N.E.2d 281, 282 (Ind.Ct.App.2002). Applying a less stringent standard of review, we may reverse the trial court if the appellant establishes prima facie error. Id. Prima facie error is defined as at first sight, on first appearance, or on the face of it. Id.

Issue One: Withdrawal of Consent to Adoption

Aunt M.R. first contends that the trial court abused its discretion when it denied DCS’ motion to withdraw consent. Here, N.W.R. became a ward of DCS when he was determined to be a child in need of services on December 16, 2009. Thus, DCS had a statutory duty to make recommendations to the trial court regarding what placement and services- would be in N.W.R.’s best interests. Ind.Code chs. 31-34-1 through -25. That obligation continues through the adoption phase of the child’s wardship. See Ind.Code § 31-19-8-5 (requiring county DCS to file report of its investigation and recommendation as to adoption petition regarding adoption of a child in need of services). As this court has observed,

the best interest of the child is the paramount concern in any adoption case. Stout v. Tippecanoe County Dep’t. of Pub. Welfare, 182 Ind.App. 404, 411, 395 N.E.2d 444, 448 (1979). The trial court is solely responsible for making the determination of what is in the best interest of the child guided by the factors— including consent—that are set forth in the adoption statute. I.C. § 31—19—11— 1. In other words, DCS is not granted with the unbridled discretion to refuse consent. As we observed in Stout:
When parental rights are terminated, the Department, as custodian of the adoptive child, occupies an important role in the adoption process. The Department becomes in loco parentis to its ward in order to find a suitable adoptive home, and by its expertise, aid the trial court in determining the child’s best interest. The ultimate decision as to the child’s best interest, however, rests with the trial court. See Johnson v. Cupp, (1971) 149 Ind.App. 611, 274 N.E.2d 411.
Stout, 182 Ind.App. at 414, 395 N.E.2d at 450-51.

In re Adoption of S.A., 918 N.E.2d at 742 (emphasis added). In other words, while the determination of the child’s best interests is ultimately in the hands of the trial court, DCS’ job is to assist the court in that decision first by investigating which course of action is in the child’s best interests and then by giving its opinion on that issue.

Additionally, a trial court deciding an adoption petition must find that “proper consent, if consent is necessary, to the adoption has been given.” Ind.Code § 31—19—11—1(a)(7). The consent required, if any, is set out in Indiana Code Section 31-19-9-l(a), which provides that,

[e]xcept as otherwise provided by [Indiana Code chapter 31-19-9], a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by the following:
(1) Each living parent of a child born in wedlock....
(2) The mother of a child born out of wedlock and the father of a child whose paternity has been established ....
(3) Each person, agency, or county office of family and children having lawful custody of the child whose adoption is being sought.
(4) The court having jurisdiction of the custody of the child if the legal guardian or custodian of the person of the child is not empowered to consent to the adoption.
(5) The child to be adopted if the child is more than fourteen (14) years of age.
(6) The spouse of the child to be adopted if the child is married.

(Emphasis added). Once consent is given, it can only be withdrawn by the filing of a motion in the trial court. Ind.Code § 31-19-10-l(c). The party seeking to withdraw consent must prove by clear and convincing evidence that withdrawal is in the best interest of the child. See Ind. Code § 31-19-10-3(1).

Here, on September 15, 2010, DCS executed a written consent to N.W.R.’s adoption by Foster Parents. But then, on October 14, DCS filed its motion to intervene in the adoption proceedings, which motion the trial court granted, as well as a motion to withdraw its consent. On December 6 and 9, the trial court held an evidentiary hearing on the motion to withdraw consent. The director of the Jackson County DCS testified that DCS sought to withdraw consent because the department “had received information that there may be an option of a relative [who] had the other children [N.W.R.’s siblings who] was more interested than [the director had] understood at the time [when he] originally signed the consent for [Foster Parents] to adopt.” December 6 Transcript at 9. The director further testified that he had served as director since 1987, that this was “probably the first” time that the department had sought to withdraw consent, and that the department was seeking withdrawal in order to “fully explore the best interests of’ N.W.R. Id. at 13, 14. The director also testified that the department had no reason to think that adoption by Foster Parents was not in the child’s best interest, nor was the department committing to the position that adoption by Aunt M.R. was definitely in the child’s best interest. Rather, the department “would not want to rule out a relative that has shown interest [and] has [N.W.R.’s] three (3) siblings in her household[.]” Id. at 17.

On December 22, the trial court denied DCS’ motion to withdraw consent. The court’s order states in relevant part:

[N.W.R.] was born on November 15, 2009[,] and has lived with [Foster Parents] since he was 2 ½ weeks old. It is the only home he has had. His placement in the home of [Foster Parents] was done by [DCS]. In the management of [N.W.R.’s] situation and as required by law the Department formulated a permanency plan. That plan called for the adoption of [N.W.R.] by [Foster Parents]. Nothing changed in [Foster Parents’] relationship with each other.
Nothing changed in [Foster Parents’] home. Nothing changed in the Department’s Opinion, “... that [Foster Parents] are able to provide a safe, stable, loving, consistent environment for this little boy.[”] (see Home Study Addendum for Foster Parent Adoption filed in this cause on September 30, 2010[,] emphasis added).
Now the [Department wishes to withdraw the consent to adoption and contest the adoption it determined was the best permanent result for [N.W.R.] The stated reason by the Department’s director was to explore other options. For [N.W.R.] this means his permanency plan was a temporary permanency plan and his life, moving to stability is rendered ambiguous.
The Court is not persuaded by clear and convincing evidence that it is in [N.W.R.’s] best interest that the Department of Child Services be allowed to withdraw the Department’s consent to the adoption of [N.W.R.] by [Foster Parents]. Motion denied.

Appellant’s App. at 5 (emphases in original).

The trial court discounted DCS’ stated reason for seeking to withdraw consent, namely, the desire to investigate whether adoptive placement with a biological relative was in N.W.R.’s best interests. But DCS informed the court that it had not discharged its obligation to investigate fully what placement would be in the child’s best interests, and the department sought only to complete its work and fulfill its obligation. The trial court denied the motion primarily on the ground that the withdrawal constituted, according to the trial court, a change in N.W.R.’s permanency plan that rendered the same “a temporary permanency plan” and made “his life, moving to stability ... ambiguous.” Id.

While “permanency” is a long-term goal, a permanency plan is not fixed and unchangeable. The legislature has provided for both the creation and modification of permanency plans. Initially, DCS may choose any of several possible permanency plan placements for a child in need of services, such as return to the child’s parent or guardian; placement with another responsible adult, such as an adult sibling, a grandparent, or other relative; appointment of a legal guardian; placement of the child for adoption; or placement in “another planned, permanent living arrangement.” Ind.Code § 31-34-21-7.5. A child’s permanency plan shall be re-evaluated to determine whether an existing permanency plan must be modified. See Ind. Code § 31-34-21-7(a), (b)(6). And with regard to adoptive placement of CHINS, the legislature has provided for the withdrawal of consent if that is in the best interests of the child. Ind.Code § 31-19-10-3. Thus, the relevant statutes clearly contemplate modification of a child’s permanency plan.

Again, the paramount interest in adoption and CHINS cases is the best interests of the child. Further investigation by DCS in this case will take time that may appear contrary to that ultimate goal by delaying permanency and stability for the child. But here, whether through miscom-munication or inadequate communication within the Jackson County DCS, the department’s director executed a consent to adoption without having fully investigated an adoptive placement with a relative who had consistently expressed an interest in placement of the child with her and who has since adopted N.W.R.’s three older siblings. And DCS’ regional director testified at length about studies supporting adoptive placement with a child’s relative. When the director realized that the department had not investigated a viable adoptive placement with a relative of the child, he asked to withdraw the previously-executed consent, not to consider a hypothetical alternative placement but to investigate a viable placement with a relative and N.W.R.’s siblings. In other words, DCS did not merely change its mind but confessed that it had failed in its statutory duty to investigate placement alternatives and, in effect, repudiated its consent. See Ind.Code § 31-19-8-5. As such, DCS informed the court that it had not given proper consent to the adoption, see Ind. Code §§ 31—19—11—1 (a)(7), 31-19-9-l(a), and we conclude that that reason satisfies the clear and convincing evidence test to show that withdrawal is in the best interest of the child. See Ind.Code § 31—19— 10-3(1). Aunt M.R. has met her burden to show prima facie error on this issue.

The trial court’s concern with the child’s stability is entirely appropriate. But N.W.R. is a ward of DCS, and, again, DCS has a statutory duty to take whatever action it deems to be in the child’s best interest, acting “in loco parentis.” In re Adoption of S.A., 918 N.E.2d at 742. Here, DCS sought to withdraw consent to Foster Parents’ adoption of N.W.R. for the sole purpose of investigating whether adoptive placement with Aunt M.R., who has already adopted the child’s three older siblings, would be in N.W.R.’s best interests.

Here, DCS had the integrity to declare on its own initiative that it had failed to meet its statutory duty. And this notice by DCS that its investigation was incomplete went directly to the heart of the adoption because it is the court’s responsibility to determine the best interests of the child based upon a full investigation of credible placement alternatives. The court’s ruling against DCS’ motion to withdraw its consent affected the substantial rights of the parties and was not harmless. See Ind. Trial Rule 61. Thus, we hold that the trial court erred when, on these facts, the court denied DCS’ request to withdraw its consent to the Foster Parents’ adoption of N.W.R.

Issue Two: Adoption

Aunt M.R. also contends that the trial court abused its discretion when it granted Foster Parents’ petition to adopt N.W.R. Again, when an adoption has been granted, we consider the evidence most favorable to the trial court’s decision and the reasonable inferences that can be drawn therefrom to determine whether the evidence is sufficient to support the judgment. In re Adoption of S.A., 918 N.E.2d at 740-41. And we will not disturb the trial court’s decision in an adoption proceeding unless the evidence at trial led to but one conclusion and the trial court reached an opposite conclusion. Id.

Here, the trial court issued a decree granting Foster Parents’ petition for adoption (“Decree”). In the Decree the trial court found in relevant part as follows:

2. That the determinants of an adoption are set forth in [Indiana Code chapter] 31-19-11. Among the determinants listed are (1) that the adoption requested is in the best interest of the child; (2) the petitioner or petitioners for adoption are of sufficient ability to rear the child and furnish suitable support and education; and (3) that proper consent, if any be necessary to the adoption[,] has been given.
3. DCS is the appropriate party to consent to the adoption of [N.W.R.] as the biological parent[s’] parental rights have been terminated as of the date of the final hearing on the adoption ([Indiana Code chapter] 31-9-9).
4. Relatives have no preferential right to adopt in the State of Indiana. In Re Adoption of B.C.S., 793 N.E.2d 1054 (Ind.Ct.App.2003).
5. The best interests of the child is the paramount concern in any adoption case. Stout v. Tippecanoe County Department of Public Welfare, 182 Ind.App. 404, 395 N.E.2d 444, 448 (1979).
6. The court is solely responsible for making the determination of what is in the best interests of the child guided by the factors—including consent—that are set forth in the adoption statute [Indiana Code Section] 31-19-11-1. In Re the Adoption of S.A., 918 N.E.2d 736, 742 (Ind.Ct.App.2009), trans. denied.
7. The [Foster Parents] have proven by clear and convincing evidence that it is in the best interests of [N.W.R.] for their petition to be granted.

Appellant’s App. at 12-13.

DCS’ consent to N.W.R.’s adoption was required by Indiana Code Section 31—19— 9—1(a)(3). But, as discussed above, we have determined that the trial court erred when it denied DCS’ request to withdraw consent to Foster Parents’ adoption of N.W.R. The parties do not argue, nor did the trial court make a record to show, that consent is not required. See Ind.Code § 31—19—9—8(a)(10). Because we hold that the trial court should have granted DCS’ motion to withdraw its consent, it necessarily follows that the trial court entered the Decree without the consent required by statute. As such, the Decree is invalid. Therefore, we must reverse the Decree and remand.

Conclusion and Instructions on Remand

DCS discovered that it had failed in its statutory obligation to conduct a complete adoptive placement investigation. When DCS acknowledged that failure and moved to withdraw its previous consent to adoption, the trial court denied the motion. We conclude on these facts that the motion to withdraw consent was made for good cause and in the best interests of the child and that the trial court abused its discretion when it denied the motion.

The DCS county director testified that he had learned after he had executed the consent that a relative of N.W.R., who was adopting N.W.R.’s three older siblings, was seriously interested in adopting N.W.R. and was a credible placement alternative indicating that further investigation was needed. And DCS’ regional director testified about the benefits of placement with a child’s siblings and that placement with Aunt M.R. was in the child’s best interests.

In sum, while Aunt M.R. is only required to show prima facie error in this case, the evidence from DCS clearly and convincingly shows that withdrawal of DCS’ consent was in the best interests of the child in order to allow DCS to investigate Aunt M.R. as an adoptive placement and, thereby, better to inform the court in its determination of the best interests of the child. We hold that where, as here, before an adoption decree has been entered, the agency acting in loco parentis moves to withdraw its consent because it has failed in its statutory obligation to conduct a complete placement investigation, the presumption that its initial consent was proper is nullified. See Ind.Code § 31—19—11—1 (a.) (7).

In light of our conclusion that the trial court erred when it denied DCS’ motion to withdraw consent, the Decree was issued without the consent required by statute. As such, the Decree is invalid and we must reverse the Decree and remand with instructions. Upon completion of the investigation of Aunt M.R. as a potential adoptive placement, DCS shall execute and file its report and recommendation regarding placement with Aunt M.R., pursuant to Indiana Code 31-19-8-5, and its consent to adoption either by Aunt M.R. or the Foster Parents or by both. The trial court shall then reconsider the evidence from the July 11, 2011, hearing on the cross-petitions for adoption, together with DCS’ report on Aunt M.R. and any newly executed consent or consents. The trial court shall review the evidence de novo to determine, which adoptive placement is in the best interests of the child, giving due consideration to the evidence showing that these siblings should be placed together. The court shall not consider the passage of time or maintenance of the status quo dispositive, which would only vitiate this appeal and remand. The trial court shall enter an adoption decree that includes findings of fact to support its decision.

Reversed and remanded with instructions.

RILEY, J., and DARDEN, J., concur.

      . At some point Aunt M.R. requested to have the child placed with her. But DCS personnel told her that the goal was reunification and Aunt M.R.'s residence was too far to participate easily in services toward that goal.

      . Consent is not required if the legal guardian or lawful custodian has failed to consent for reasons found by the court not to be in the best interests of the child. Ind.Code § 31-19—9—8(a)(10). The parties do not contend that consent to the adoption is not required in this case, and the trial court made no such finding in this case.

      .Under Indiana Code Section 31-19-9-2(3), a person who executed a written consent may not execute a subsequent consent to have another person adopt the child unless one or more of the circumstances set out in the statute applies. However, DCS "may execute more than one (1) written consent to the adoption of a child if the department determines that the execution of more than one (1) written consent is in the best interests of the child.” Ind.Code § 31—19—9—2(f).

      . Indiana Code Section 31-19-10-3 sets out restrictions to the withdrawal of consent, none of which apply in this case.

      . There is no copy of DCS’ motion to withdraw consent in the record on appeal. We rely solely on the transcript for the bases asserted by DCS in support of the motion.

      . As discussed in Issue Two, we express no opinion as to which prospective adoptive placement in this case is in N.W.R.'s bests interests, although we include instructions for making that determination on remand.

      . Again, Indiana Code Section 31—19—9—2(0 allows DCS to file more than one consent if it determines that execution of more than one consent is in the best interests of the child.


author: MAY, Judge. CRONE, Judge,

text:
    John W. SCHOETTMER and Karen Schoettmer, Appellants-Plaintiffs, v. Jolene C. WRIGHT and South Central Community Action Program, Inc., Appellees-Defendants.
    No. 49A04-1108-CT-406.
    Court of Appeals of Indiana.
    July 13, 2012.

      Jeremy S. Baber, Stewart & Stewart, Carmel, IN, for Appellants.
    James J. Hutton, The Cincinnati Insurance Company, Indianapolis, IN, for Ap-pellees.
   OPINION

MAY, Judge.

John and Karen Schoettmer appeal summary judgment in favor of Jolene Wright (Wright) and South Central Community Action Program, Inc. (South Central) (collectively, “Appellees”). We affirm.

FACTS AND PROCEDURAL HISTORY

On November 24, 2008, Wright was operating a vehicle owned by her employer, South Central, when she was involved in an accident with a vehicle John was driving. John was injured in the accident. South Central is a private, nonprofit organization that provides services to low-income families, and at the time of the accident, Wright was acting within the scope of her employment. South Central is designated by the State as a community action agency and receives funding from both the state and federal governments.

Cincinnati Insurance Company (Cincinnati Insurance) provides liability insurance to South Central. Thirty-five days after the accident, on December 29, 2008, Heather DeVaughan, a claims representative from Cincinnati Insurance, sent a letter to John indicating that prior attempts to contact him had been unsuccessful and that she needed information from him to process his insurance claim. On January 12, 2009, John gave DeVaughan a recorded statement detailing his personal information as well as facts regarding the accident. DeVaughan advised John that Cincinnati Insurance could not settle his claim until he was done with medical treatments. On April 22, John completed his medical treatments and signed a medical release form permitting Cincinnati Insurance access to his medical records and medical bills for the purpose of evaluating his claim. DeVaughan telephoned John on August 18, to inform him that she had received the information she needed to begin settlement of the insurance claim. Cincinnati Insurance subsequently made a settlement offer to John in the amount of $12,868.

John declined the settlement offer and retained legal counsel in September 2009. His counsel and Cincinnati Insurance could not negotiate an acceptable settlement offer, and on October 6, 2010, Schoettmers sued Appellees. John claimed damages for his bodily injuries and Karen claimed damages for loss of consortium. On November 29, 2010, Appellees answered, and on February 3, 2011, they amended their answer to include the affirmative defense that South Central is a political subdivision governed by the Indiana Tort Claims Act (ITCA), which has notice provisions with which Schoettmers did not comply.

On April 13, 2011, Appellees moved for summary judgment and designated evidence that judgment as a matter of law was appropriate because Schoettmers did not comply with the notice requirements of the ITCA. Schoettmers responded, arguing substantial compliance with the ITCA, waiver, and estoppel. The trial court held a hearing on July 8, and on July 12 entered summary judgment in favor of Ap-pellees.

DISCUSSION AND DECISION

Our standard of review of a summary judgment is well settled. We apply the same standard as the trial court and determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.2005); Ind. Trial Rule 56(C). We construe all facts and reasonable inferences in favor of the non-moving party and determine whether the moving party has shown from the designated evidence there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind.2010). A summary judgment comes to us cloaked with a presumption of validity. Kumar v. Bay Bridge, LLC, 903 N.E.2d 114, 115 (Ind.Ct.App.2009), reh’g denied.

We must affirm a summary judgment if it can be sustained on any theory or basis in the record. Id. Compliance with the ITCA is a question of law properly determined by the court. Irwin Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 439, 442 (Ind.Ct.App.2004). A judgment based on noncompliance with the ITCA is subject to review as a negative judgment, and we will reverse only if it is contrary to law. Porter v. Fort Wayne Cmty. Sch., 743 N.E.2d 341, 344 (Ind.Ct.App.2001), trans. denied.

It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA. See Ind.Code § 34-13-3-22. The ITCA bars tort claims against a political subdivision unless notice of the claim is filed with the governing body of that political subdivision within 180 days after the loss occurs. Ind.Code § 34-13-3-8(a). The notice must describe in a short and plain statement the facts on which the claim is based and must include

the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.

Ind.Code § 34-13-3-10. The notice must be in writing and must be delivered in person or by registered or certified mail. Ind.Code § 34-13-3-12.

Compliance with the notice provisions of the ITCA is a procedural precedent the plaintiff must prove and the trial court must determine prior to trial. Brown v. Alexander, 876 N.E.2d 376, 383 (Ind.Ct.App.2007), trans. denied. If a plaintiff does not give the required notice, the defendant may raise in a responsive pleading an affirmative defense of noncompliance. Id. at 383-84. If the defendant does so, the burden shifts to the plaintiff to prove compliance. Id.

Nevertheless, not all technical violations of the statute are fatal to a claim. Allen v. Lake Cnty. Jail, 496 N.E.2d 412, 414-15 (Ind.Ct.App.1986). “Indiana courts have recognized, in this context, the theories of substantial compliance, waiver, and estop-pel.” Id. at 415. We now examine these three factors to determine if the trial court erred in granting the Appellees summary judgment based on Schoettmers’ failure to comply with the notice requirements of the ITCA.

1. Substantial Compliance

Schoettmers concede they never gave notice or attempted to give notice of their claims to South Central. Instead, they assert their communications with South Central’s liability insurer, Cincinnati Insurance, substantially complied with the ITCA notice provisions. We disagree.

It is well settled that notice is sufficient if it substantially complies with the content requirements of the statute. Boushehry v. City of Indianapolis, 931 N.E.2d 892, 895 (Ind.Ct.App.2010). The issue of substantial compliance is not a question of fact, but is a fact-sensitive determination. Id. The purpose of the notice requirement is to provide the governmental entity the opportunity to investigate the facts surrounding a claim so that it may determine its liability and prepare a defense. Irwin Mart. Corp., 816 N.E.2d at 446. “Substantial compliance focuses on the nature of the notice itself, and is concerned with the extent to which the form, content, and timing of the notice complies with the requirements of the notice statute.” McConnell v. Porter Mem’l Hosp., 698 N.E.2d 865, 868 (Ind.Ct.App.1998), trans. denied. Substantial compliance permits an action to proceed when the claimant has attempted to provide notice, has fallen short of the strictures of the statute, and, yet, has supplied the appropriate governmental entity with sufficient information to investigate the claim. Smithson v. Howard Reg’l Health Sys., 908 N.E.2d 265, 268 (Ind.Ct.App.2009).

We rejected a substantial compliance claim similar to Schoettmers’ in Brown. Brown claimed personal injuries from a motor vehicle accident with a municipal power and light utility truck. She had various communications with the utility’s insurance carrier, but she filed no tort claim notice. The utility and its insurance carrier were aware of the details of the accident and resulting injuries, investigated the accident, settled the property damage portion of the claim, and engaged in discussions with the claimant. Nevertheless, we noted the utility’s knowledge of the claim and the opportunity to investigate were insufficient to satisfy the purpose of the ITCA notice requirements. 876 N.E.2d at 384. We noted we have interpreted the notice statutes to allow substantial compliance when a claimant has taken affirmative steps to notify the governmental entity, but determined “we cannot find substantial compliance when the claimant took no steps whatsoever to comply with the notice statute.” Id. at 383. Accordingly, we affirmed summary judgment for the utility.

Similarly, in Fowler v. Brewer, 773 N.E.2d 858 (Ind.Ct.App.2002), trans. denied, the Fowlers sent a letter to the fire department’s insurance company indicating they would seek damages sustained in a car accident with a firefighter. Because the letter was not filed with the governing body of the political subdivision and did not comply with the form, content, and timing requirements of the ITCA, we held there was not substantial compliance with the ITCA notice requirements. Neither the fire department’s actual knowledge nor the insurer’s willingness to settle the claim was sufficient to indicate that the purpose of the notice provision was met or to eliminate the requirement that notice be given to the political subdivision under the ITCA. Id. at 865; see Hasty v. Floyd Mem’l Hosp., 612 N.E.2d 119, 123 (Ind.Ct.App.1992) (holding that notice to the governmental entity’s insurance carrier, as opposed to notice to the entity itself, was insufficient to establish substantial compliance).

Schoettmers made no attempt to comply with the notice provisions of the ITCA. They never filed a notice of their claims, adequate or inadequate, with South Central, Cincinnati Insurance, or any other entity. They maintain Cincinnati Insurance had actual knowledge of their claims and assert such knowledge should be viewed as notice to South Central because, as South Central’s liability insurer, Cincinnati Insurance “may be properly viewed as an agent of South Central.... ” (Appellants’ Br. at 13.) The Schoettmers cite no legal authority that supports the proposition that a governmental entity’s liability insurer is its agent for purposes of receiving notice pursuant to the ITCA, and the decisions addressed above support the opposite conclusion.

We acknowledge Cincinnati Insurance had actual knowledge of much of the information required by the ITCA, but nothing in the record indicates South Central had the same information. Regardless, absent an attempt at filing notice, actual knowledge on the part of the insurer and/or the governmental entity is insufficient as a matter of law. “[W]e cannot find substantial compliance when the claimant took no steps whatsoever to comply with the notice statute.” Brown, 876 N.E.2d at 383. Under the circumstances, Schoettmers did not substantially comply with the notice provisions of the ITCA.

2. Waiver

Schoettmers next assert South Central waived its affirmative defense. The theory of waiver focuses not on the plaintiffs notice but on the defendant’s failure to timely raise the plaintiffs noncompliance with the statute as a defense. Allen, 496 N.E.2d at 415 n. 3. Appellees did not assert their affirmative defense of failure to comply with the notice provisions of the ITCA in their original answer; rather they asserted it in their amended answer. An amended pleading relates back to the original pleading when a claim or defense asserted in the amended pleading arises out of an occurrence that had been set forth in the original pleading. Fowler, 773 N.E.2d at 862 (citing Ind. Trial Rule 15(C)). The trial court has broad discretion to permit amendments to pleadings, and leave to amend should be given unless the amendment would prejudice the opposing party. Id.

Schoettmers cannot establish prejudice because the 180-day time limit for them to file their tort claim notice had long since passed when South Central filed its first answer. Schoettmers did not object to Appellees’ motion for leave to amend their answer and Schoettmers do not now assert the trial court abused its discretion when it granted leave to amend. As Appellees timely asserted their affirmative defense, the doctrine of waiver does not apply.

3. Estoppel

Finally, Schoettmers contend the trial court should have applied the doctrine of estoppel to South Central’s claim they did not comply with the notice provisions of the ITCA. An estoppel theory focuses on representations made by the defendant or its agents to the plaintiff that induce the plaintiff reasonably to believe formal notice is unnecessary. Allen, 496 N.E.2d at 415 n. 3. Schoettmers argue that, during John’s several telephone conversations with Cincinnati Insurance claim representative DeVaughan, as well as in written correspondence from DeVaughan, she never informed Schoettmers that South Central was a political subdivision or that they needed to comply with the ITCA notice requirements. Consequently, Schoettmers argue, they were “lured into failing to strictly comply with the ITCA as a result of the aforementioned communications and [DeVaughan’s] early and continuous willingness to settle [the] claim.” (Appellants’ Br. at 15.) We disagree.

We have addressed “‘the significance of a plaintiffs legitimate and complete ignorance that a defendant is a government employee as that ignorance relates to the plaintiffs failure to comply with the ITCA.’ ” Gregor v. Szarmach, 706 N.E.2d 240, 242 (Ind.Ct.App.1999) (quoting Baker v. Schafer, 922 F.Supp. 171, 173 (S.D.Ind.1996)). Indeed, where a government employee in the course of his duties acts in a manner that disguises or does not reveal his status as a government employee, he may be estopped from asserting the ITCA as a bar to a claim if the plaintiff actually and reasonably lacks knowledge of the government employee’s status. Id. at 243. “[A] party may not utilize subterfuge to bar a claim for failure to comply with the notice provisions of the ITCA.” Davidson v. Perron, 716 N.E.2d 29, 34 (Ind.Ct.App.1999), trans. denied.

The designated evidence indicates Wright gave Schoettmer the insurance information for South Central, her employer. The letters Cincinnati Insurance sent Schoettmers before and after the 180-day time limit had passed indicated the policyholder was “South Central Community Action Program.” (App. at 68, 79.) The letters Cincinnati Insurance sent to Scho-ettmers’ counsel listed the policyholder as “SCCAP.” (Id. at 83.) John stated in an affidavit: “That on or about December 29, 20081 received a letter from Heather De-Vaughan who identified her self [sic] as a claims representative of Cincinnati Insurance, the insurance company for South Central Community Action Program.” (Id. at 75.)

Gregor, while factually similar, is distinguishable. Gregor, who was driving in the course of his employment with the Lake County Department of Children and Family Services, was involved in a traffic accident with Szarmach. Gregor, 706 N.E.2d at 241. He gave Szarmach his personal insurance information. Szarmach’s counsel contacted Gregor’s personal insurer, indicating the intent to file a claim. Over a year later, Szarmach filed a tort claim. Gregor filed affirmative defenses, none of which indicated he was a government employee at the time of the accident.

In an interrogatory, Gregor stated he was performing duties related to his government employment. He amended his answer to Szarmach’s complaint and moved for summary judgment on the ground he was immune from Szarmach’s tort claim as a government agent because Szarmach did not comply with the notice provision of the ITCA.

The trial court denied Gregor’s motion on the basis of estoppel, and we affirmed:

[W]here a government employee in the course of his duties acts in a manner which disguises or fails to reveal his status as a government employee, he may be estopped from asserting the Indiana Tort Claims Act as a bar to a claim if the plaintiff actually and reasonably lacks knowledge of the government employee’s status. Because Gregor was not wearing any kind of government uniform and was driving his own personal vehicle, which did not bear or display any government identification, when he was involved in a collision on a public thoroughfare, at which time he provided information concerning his own personal automotive insurance coverage but did not indicate that the accident occurred while he was engaged in the course of government business, a negligence claim against him is not barred for failure to have filed notice with the government entity employing him within 180 days of the accident.

Id. at 243. By contrast, Wright, South Central, and Cincinnati Insurance never misrepresented the identity of the policyholder or the fact Wright was an employee of South Central engaged in South Central’s business at the time of the accident.

Even if Schoettmers did not know before they obtained counsel that South Central was a governmental entity, his counsel should have learned, through due diligence, of South Central’s status. See Ind. Professional Conduct Rule 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”) In Davidson, 716 N.E.2d at 34-35 we held “a plaintiff must exercise due diligence in giving tort claims notice after the equitable grounds cease to operate as a valid basis for causing delay.” Id. In Davidson, the Mayor of Elkhart wrote an allegedly defamatory letter to the editor of the local newspaper, but used someone else’s name. The true identity of the author was not known until a year later.

When Davidson learned the Mayor wrote the letter, he sent a tort claim notice to the City of Elkhart within one month. He amended his defamation claim five months later, even though the time for filing an ITCA notice had passed. We held Davidson “filed his notice within a reasonable time” after learning a government employee wrote the defamatory statements. Id. at 35. One month was a “reasonable time” because it fell within the 180-day requirement dictated by the ITCA. Id. at 35 n. 5.

Even if Schoettmers did not know South Central was a governmental entity in time to meet the ITCA deadline, their counsel, who represented them for a year before a tort claim was filed, should have discovered South Central’s status in time to file an ITCA notice within a “reasonable time.”

CONCLUSION

The trial court did not err when it granted Appellees’ motion for summary judgment. Schoettmers did not timely file their ITCA notice, nor may they find refuge from their failure in the theories of substantial compliance, waiver, and estop-pel. Accordingly, we affirm the trial court.

Affirmed. BROWN, J., concurs.

CRONE, J., dissents with separate opinion.

CRONE, Judge,

dissenting.

I agree with the majority’s conclusion that because the Schoettmers did not even attempt to give notice of their claims to South Central, they cannot be said to have substantially complied with the notice requirements of the ITCA. Further, I agree that South Central did not waive its affirmative defense of such noncompliance. However, I believe that South Central should be- estopped from asserting the Schoettmers’ noncompliance with the ITCA. The Schoettmers were unaware of South Central’s governmental status, Cincinnati Insurance made representations upon which the Schoettmers justifiably relied, the purpose of the notice requirement of the ITCA was clearly accomplished, and there was a lack of prejudice to South Central. Therefore, I must respectfully dissent.

The record is clear that, at the time of the accident, John had no idea that Wright’s private employer, South Central, was a statutorily designated community action program and thus, a political subdivision for the purposes of the ITCA. Due to the contact initiated by Cincinnati Insurance and its expressed willingness to settle John’s claim on behalf of South Central, it was reasonable for John to rely on those representations that nothing else was necessary to preserve and pursue his claim. John did what any reasonable layperson would have done. He did not seek to retain counsel or to file a lawsuit, but simply continued to supply the information requested by South Central’s insurer. All the while, unbeknownst to him, the 180-day clock was ticking away. Cincinnati Insurance’s behavior was misleading and John’s complete ignorance regarding South Central’s governmental status was reasonable.

Although the majority seems to concede that the Schoettmers actually and reasonably lacked knowledge that South Central was a political subdivision until well after the 180-day notice period had passed, the majority makes much of the fact that the Schoettmers eventually did retain counsel and concludes that counsel should have learned, through due diligence, of South Central’s governmental status and filed a tort claim notice in a “reasonable time” after “the equitable grounds cease to operate as a valid basis for causing delay.” See Davidson, 716 N.E.2d at 34-35. Here, however, I do not think the equitable grounds causing delay ceased to operate until South Central finally acknowledged and revealed its governmental status in its amended answer to the Schoettmers’ complaint. Indeed, a reasonable inference can be drawn that counsel for South Central was wholly unaware of his own client’s governmental status until February 4, 2011, when South Central finally asserted such status when it filed its motion for leave to file an amended answer to include the affirmative defense of the Schoettmers’ failure to comply with the notice provisions of the ITCA. I would not hold the Schoett-mers’ counsel to a higher standard of due diligence regarding discovery of South Central’s governmental status than I would South Central’s own counsel.

Based upon the foregoing, I would reverse summary judgment in favor of South Central and hold, as a matter of law, that South Central is estopped from asserting the Schoettmers’ noncompliance with the notice provisions of the ITCA as a bar to their claims. At the very least, the designated evidence reveals that genuine issues of material fact remain, and the Schoett-mers should be allowed to present proof of estoppel to the trial court. See Delaware County v. Powell, 272 Ind. 82, 85, 393 N.E.2d 190, 192 (1979) (when acts and conduct of the defendant or his agents have established that the purposes of the ITCA notice provisions have been satisfied, summary judgment is inappropriate as these acts and conduct could create an estoppel).

      . Schoettmers direct us to Galbreath v. City of Indianapolis, 253 Ind. 472, 255 N.E.2d 225 (1970), as authority for their proposition that a liability insurer is an agent of a political subdivision for purposes of receiving notice pursuant to the ITCA. Galbreath neither stands for nor supports that proposition. Galbreath submitted a timely tort claim notice to the city legal department, but not the may- or or city clerk as the ITCA required. Our supreme court held the city attorney had the authority to accept notice on behalf of the mayor. Id. at 479, 255 N.E.2d at 229. Accordingly, Galbreath had substantially complied with the notice provisions. Id. at 480, 255 N.E.2d at 230.

      . We recognize that, in City of Tipton v. Baxter, 593 N.E.2d 1280 (Ind.Ct.App.1992), another panel of this Court found substantial compliance in circumstances quite similar to those presented here where, although no notice was attempted, the governmental entity’s insurer "had actual knowledge of the accident several days after it happened, conducted an investigation, and indicated a willingness to settle.” Id. at 1282. We believe, however, the more recent opinion in Brown, and its holding that substantial compliance requires at a minimum that a claimant take affirmative steps to notify the governmental entity, better reflects the current state of Indiana law.

      . Estoppel was briefly mentioned in Brown, but Brown argued only substantial compliance. Accordingly, we did not consider the application of estoppel under those facts. Brown, 876 N.E.2d at 382.