CHINS: N M v. Indiana Department of Child Services ( 2023 )

FILED
Nov 21 2023, 8:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Wm. Joseph Carlin, Jr. Theodore E. Rokita
Auburn, Indiana Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of B.M., C.M., and November 21, 2023
S.M. (Minor Children), Children Court of Appeals Case No.
in Need of Services, 23A-JC-1285
and Appeal from the DeKalb Circuit
Court
N.M. (Father),
The Honorable Kurt B. Grimm,
Appellant-Respondent, Judge
v. Trial Court Cause Nos.
17C01-2301-JC-1, -2, -3
Indiana Department of Child
Services,
Appellee-Petitioner
Opinion by Judge Crone
Judges Riley and Mathias concur.
Crone, Judge.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 1 of 14
Case Summary
[1] N.M. (Father) appeals the child in need of services (CHINS) adjudications for
his children B.M., C.M., and S.M. (the Children). He claims that the CHINS
adjudications are erroneous and must be reversed because the trial court abused
its discretion by denying his counsel’s motion to withdraw, which deprived
Father of his right to self-representation. He also argues that the evidence was
insufficient to establish that the Children needed care, treatment, or
rehabilitation that they were not receiving and were unlikely to be provided
without the court’s coercive intervention. Finding these arguments meritless,
we affirm.
Facts and Procedural History
[2] The evidence in support of the CHINS adjudications follows. Father and J.C.
(Mother) have three children: B.M., born in 2007, C.M., born in 2010, and
S.M., born in 2013. Father’s paternity was established by court order, and it
appears that initially Mother had primary physical custody of the Children. In
2015, due to Mother’s incarceration, she and Father entered into an agreement
that granted Father custody of the Children. 1 After Mother’s release in 2017,
Father retained custody.
[3] In 2022, the Children were on spring break with Father in Florida. Throughout
the break, they called and texted Mother expressing apprehension over Father’s
1
The record does not reveal the terms of the agreement.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 2 of 14
conduct, such as Father leaving them alone in a hotel room and not returning
for a long time. In one call, they told Mother that they were “scared that their
dad was driving with them drunk and he was swerving[.]” Tr. Vol. 2 at 28.
Father was arrested and charged with operating while intoxicated as a third
violation within ten years. 2 The Florida Department of Child Services detained
the Children and placed them in foster care until Mother was able to travel to
Florida to retrieve them. Mother and the Children returned to Indiana and lived
with the Children’s maternal grandmother (Grandmother) for the next six
months. Mother filed a request for an emergency change of custody, but before
the court ruled on the request, she returned the Children to Father’s care, at his
insistence, after he was released from jail on bail and had returned to Indiana.
[4] In October 2022, Auburn Police Department Officer Jeffrey Arnett responded
to a report of a disturbance at Father’s residence. When Officer Arnett arrived,
he observed Father in handcuffs with a bloody nose. Father was charged with
class A misdemeanor domestic battery of B.M.
[5] In December 2022, Grandmother contacted Officer Arnett and requested that
he accompany her to Father’s residence to check on the Children. When Officer
Arnett was speaking to Father at the door to his house, B.M. came to the door
and told the officer that “everything was not okay.” Id. at 11. Officer Arnett
could tell from B.M.’s demeanor that B.M. did not want him to leave. Officer
2
The CHINS petition alleged that Father had been convicted in the Florida case, but Father testified at the
factfinding hearing that the case was still pending.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 3 of 14
Arnett asked Father if he could speak with the Children, but Father refused.
Based on what B.M. had said, Officer Arnett informed Father that he was not
going to leave until he confirmed that the Children were safe. Father began
yelling at the police so loud “that everyone in the neighborhood could hear.”
Id. at 12. The police directed Father to lower his voice multiple times, but he
refused. Ultimately, Father was detained so that the police could enter the
residence to check on the Children. Father was charged with resisting law
enforcement and disorderly conduct.
[6] In January 2023, Father was arrested and charged with operating while
intoxicated (OWI). On January 12, 2023, the Indiana Department of Child
Services (DCS) filed a petition alleging that the Children were CHINS because
Father had multiple OWI convictions and had been charged with additional
crimes in which he was under the influence of alcohol and the Children were
physically or emotionally impacted. The petition further alleged that Mother
was unable to provide for the Children’s needs.
[7] That same day, the trial court held an initial and detention hearing and ordered
the Children to be removed from their parents’ care. DCS placed the Children
with Grandmother. Father asked the court to appoint an attorney based upon
his indigency, and the court appointed Keven Likes. On February 15, 2023,
Father sent the court a letter requesting appointment of a different attorney,
asserting that Likes had not provided him with any documents or evidence
from DCS and that he had no confidence that Likes had any interest in
defending him.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 4 of 14
[8] On March 6, 2023, the trial court held a CHINS factfinding hearing. Prior to
the hearing, Mother signed an agreement stipulating that the Children were
CHINS because she did not have appropriate stable housing and was unable to
care for the Children. At the beginning of the hearing, Likes informed the court
that Father had told him that “he wasn’t interested in signing an agreement and
he was interested in representing himself” and moved to withdraw from the
case. Id. at 5. The trial court responded, “[A]t this late date, I’m not inclined to
withdraw the appointment of Mr. Likes as [Father’s] attorney[,]” and instructed
the parties to proceed. Id. DCS called Officer Arnett, Mother, Father, and the
DCS family case manager to testify. The Children’s guardian ad litem was also
present. Mother testified that she was currently homeless and that she believed
that Grandmother’s home was an appropriate place for the Children. Father
also testified that Grandmother was providing adequate care for all their needs
and had no objection to their placement with her.
[9] Likes cross-examined all the witnesses, including Father. During his cross-
examination of Father, Likes offered into evidence Father’s plea agreement to
the 2022 domestic battery, disorderly conduct, and resisting law enforcement
charges and the 2023 OWI charge. Father was still incarcerated and awaiting
sentencing. Father testified that, based on the plea agreement, he was hoping to
serve his two-and-a-half-year sentence on house arrest, which would allow him
to provide care to the Children. Likes also specifically questioned Father about
each of the incidents giving rise to the charges against him, so that Father could
tell his side of the story. At the close of DCS’s case, Likes acknowledged that
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 5 of 14
the court had afforded him “a lot of latitude” in cross-examining Father so that
Father said “what he was interested in saying.” Id. at 70.
[10] At the close of the hearing, the guardian ad litem opined that he believed that a
CHINS adjudication was appropriate. He stated that Mother admitted that the
Children were CHINS and Father was in jail and was going to be in jail for at
least another month and a half and possibly longer, and therefore neither parent
was able to take care of the Children. The guardian ad litem explained that
without the coercive intervention of the court, DCS would not be able to
provide services to the Children. The court agreed.
[11] On March 22, 2023, the trial court issued an order finding that the Children
were CHINS and that removal from the home environment was in the
Children’s best interests because “of the allegations admitted and of an
inability, refusal or neglect to provide shelter, care, and or supervision at the
present time.” Appellant’s App. Vol. 2 at 29.
[12] On April 24, 2023, Likes filed a motion to withdraw appearance stating that
Father wished to represent himself. On May 1, 2023, the trial court held a
dispositional hearing. DCS filed the predispositional report that morning. The
trial court took judicial notice of the sentencing order in the Indiana cases to
which Father had pled guilty and noted that he had been sentenced to two and
a half years in the Indiana Department of Correction. Father again requested to
represent himself, and, after ensuring that Father understood the drawbacks of
self-representation, the court granted Likes’s motion to withdraw. Father
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 6 of 14
testified that had he been permitted to represent himself at the factfinding
hearing, he would have called witnesses and introduced text messages and
video evidence from the December 2022 police welfare check that gave rise to
his disorderly conduct and resisting arrest charges.
[13] On May 10, 2023, the trial court issued a dispositional order, ordering that the
Children remain outside the home and that Father contact the family case
manager every week. The court found, just as it had in its prior order, that
removal from the home environment was in the Children’s best interests
because “of the allegations admitted, [and] of an inability, refusal or neglect to
provide shelter, care, and/or supervision at the present time.” Appealed Order
at 3. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion by
denying counsel’s motion to withdraw at the start of the
factfinding hearing.
[14] Father first challenges the trial court’s denial of Likes’s motion to withdraw
appearance that he made at the beginning of the factfinding hearing. We review
a trial court’s ruling on an attorney’s motion to withdraw for an abuse of
discretion. In re K.S., 917 N.E.2d 158, 162 (Ind. Ct. App. 2009). “An abuse of
discretion exists only when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court.” Id.Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 7 of 14
[15] Father argues that by denying Likes’s motion to withdraw, the trial court
denied Father the right to represent himself. He further asserts that the trial
court “made no inquiry whatsoever as to [his] reasons or his ability to self-
represent[,]” and “[c]onsequently, [he] was deprived of his constitutional and
statutory right to present evidence.” Appellant’s Br. at 9. In essence, Father is
arguing that the trial court had a duty to make inquiries regarding his reasons
for requesting self-representation before ruling on the motion to withdraw.
[16] We note that Father did not inform the trial court of his desire to represent
himself until the start of the factfinding hearing. His earlier letter to the trial
court did not indicate any desire on Father’s part to represent himself. On
appeal, Father directs us to no CHINS case that requires a trial court to
question a parent who has been appointed counsel regarding why that parent
wishes to proceed pro se when the request for self-representation is made at the
latest possible moment. In the context of a criminal defendant’s right to self-
representation, our supreme court has held that the assertion of that right “must
be asserted within a reasonable time prior to the day on which the trial begins”
and that “[m]orning of trial requests are thus per se untimely.” Russell v. State,
270 Ind. 55, 62, 383 N.E.2d 309, 314 (1978). Further, “[a]ny self-representation
request made the day of trial or later may be summarily denied, for self-
representation after this point is completely a matter of the trial court’s
discretion.” Id. at 64, 383 N.E.2d at 315.
[17] We recognize that there are differences between criminal cases and CHINS
cases, which are civil in nature. In re Eq.W., 124 N.E.3d 1201, 1209 (Ind. 2019).
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 8 of 14
However, with regard to asserting the right to self-representation, we are
unpersuaded that a party in a CHINS case is entitled to greater protections than
a defendant in a criminal case. Thus, we decline to conclude that where, as
here, a request for self-representation is made on the morning of the hearing,
the trial court has a duty to make inquiries before ruling on a motion to
withdraw.
[18] In addition, we are unpersuaded that the trial court’s denial of counsel’s motion
to withdraw was clearly against the logic and effect of the facts and
circumstances before it. DeKalb County Local Rule 17-TR-3.1-2 provides that
the court shall grant permission to withdraw only upon the filing of an
appearance by new counsel, upon written motion that has been served on the
client ten days prior to filing, or upon other good cause found by the court. In
this case, the first two options are clearly inapplicable, leaving only good cause
as a permissible basis for granting the motion to withdraw. As noted, the
motion was made at the beginning of the factfinding hearing. Our supreme
court has stated, “None of the interests involved here, the right of self-
representation, the right to counsel, or the interest in preserving an orderly …
process, are furthered by the allowance of a last minute request” to self-
represent. Russell, 270 Ind. at 62, 383 N.E.2d at 314. Rather, “experience has
shown that day of trial assertions of the self-representation right are likely to
lead to a rushed procedure, increasing the chances that the case should be
reversed because some vital interest of the defendant was not adequately
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 9 of 14
protected.” Id., 383 N.E.2d at 314. 3 Given the untimeliness of the motion to
withdraw and the dangers and drawbacks of self-representation, we cannot say
that the trial court’s summary denial of counsel’s last-minute motion was an
abuse of discretion. 4
Section 2 – Sufficient evidence supports the CHINS
adjudications.
[19] Father also argues that there is insufficient evidence to sustain the CHINS
adjudications. As we review his argument, we are mindful that appellate courts
generally “grant latitude and deference to trial courts in family law matters.” In
re E.K., 83 N.E.3d 1256, 1260 (Ind. Ct. App. 2017), trans. denied (2018). “This
deference recognizes a trial court’s unique ability to see the witnesses, observe
their demeanor, and scrutinize their testimony, as opposed to this court’s only
being able to review a cold transcript of the record.” Id. In determining whether
sufficient evidence supports a CHINS determination, an appellate court does
“not reweigh evidence or judge witness credibility[.]” Eq.W., 124 N.E.3d at
1208. Instead, “[w]e consider only the evidence that supports the trial court’s
3
Father relies on cases that involved the right to counsel rather than the right to self-representation. These
rights are not treated similarly, and therefore we find Father’s cases inapplicable. See Russell, 270 Ind. at 59-
60, 383 N.E.2d at 312-13 (explaining that right to counsel and right to self-representation encompass different
interests and accordingly do not require the same standard for relinquishment of these rights).
4
Father also argues that the trial court failed to adequately provide its reasons for its disposition, and that
that failure, along with the court’s alleged error in denying him the right to self-represent, renders the CHINS
adjudications improper. Appellant’s Br. at 14. Because we have found no error in the trial court’s denial of
Likes’s motion to withdraw, we need not address Father’s argument regarding the court’s reasons for its
disposition.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 10 of 14
decision and reasonable inferences drawn therefrom.” In re K.D., 962 N.E.2d
1249, 1253 (Ind. 2012).
[20] “Because a CHINS proceeding is a civil action, the State must prove by a
preponderance of the evidence that a child is a CHINS as defined by the
juvenile code.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Pursuant to Indiana
Code Section 31-34-1-1, a child is a CHINS where sufficient evidence
establishes the following elements:
(1) the child’s physical or mental condition is seriously impaired
or seriously endangered as a result of the inability, refusal, or
neglect of the child’s parent, guardian, or custodian to supply the
child with necessary food, clothing, shelter, medical care,
education, or supervision:
(A) when the parent, guardian, or custodian is financially
able to do so; or
(B) due to the failure, refusal, or inability of the parent,
guardian, or custodian to seek financial or other
reasonable means to do so; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 11 of 14
In sum, the evidence must establish that the “parent’s actions or inactions have
seriously endangered the child, that the child’s needs are unmet, and (perhaps
most critically) that those needs are unlikely to be met without State coercion.”
In re S.D., 2 N.E.3d 1283,1287 (Ind. 2014).
[21] “[T]he purpose of a CHINS adjudication is to protect children, not punish
parents.” N.E., 919 N.E.2d at 106. Our supreme court has cautioned that “[n]ot
every endangered child is a child in need of services, permitting the State’s
parens patriae intrusion into the ordinarily private sphere of the family.” S.D., 2
N.E.3d at 1287. “State intrusion is warranted only when parents lack the ability
to provide for their children.” In re N.C., 72 N.E.3d 519, 524 (Ind. Ct. App.
2017). “Moreover, when determining whether a child is a CHINS under section
31-34-1-1, and particularly when determining whether the coercive intervention
of the court is necessary, the juvenile court ‘should consider the family’s
condition not just when the case was filed, but also when it is heard.’” Id.(quoting S.D., 2 N.E.3d 1290).
[22] Father argues that the State failed to establish that the Children needed care,
treatment, or rehabilitation that they were not receiving and that were unlikely
to be provided or accepted without the court’s coercive intervention. He
contends that the Children were living with Grandmother, who was providing
for all their needs, and that he would have arranged for the Children to live
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 12 of 14
with Grandmother while he was incarcerated without the State’s intervention. 5
Father asserts that the Children could be cared for by Grandmother “based
upon the parties’ willingness, a change in the custodial order in their paternity
cases … by agreement of the parties, a temporary guardianship,” or pursuant to
Indiana Code Section 31-17-2-25, which applies to emergency placement of a
child. 6 Appellant’s Br. at 21.
[23] At the time the case was filed and at the factfinding hearing, Father was
incarcerated due to his OWI arrest, his second in less than a year, and was
unable to care for the Children. By her own admission, Mother is homeless. 7 By
Father’s own admission, the Children would not be safe with Mother in her
current condition. Although Father contends that he would willingly leave the
Children in Grandmother’s care while he is incarcerated, there is nothing to
prevent Mother from removing the Children from Grandmother’s care because
Grandmother does not have legal custody. The legal actions Father suggests to
5
Father also contends that the dispositional order violated the least restrictive mandate in Indiana Code
Section 31-34-19-6 because he and Grandmother willingly agreed to Grandmother’s care of the Children
during his incarceration, and “the least restrictive alternative is that the [C]hildren would have been placed
with [Grandmother] based upon the willingness of all parties, as the family had done in the past.”
Appellant’s Br. at 19. This is just a reframing of his argument that the coercive intervention of the court was
unnecessary, and therefore we do not address it independently.
6
Section 31-17-2-25 permits a person other than a parent to seek a custody determination or a modification
of custody when a custodial parent dies or becomes unable to care for the child and to obtain emergency
custody pending a final determination.
7
Father notes that the predispositional report states, “[The children] are placed with grandmother in the
same community with mother living in the home.” Appellant’s Br. at 19 (quoting Appellant’s App. Vol. 2 at
42). He contends that the evidence does not support that Mother lived with Grandmother, as Mother testified
that she was homeless. Given that both Mother and Father testified that Grandmother was an appropriate
caretaker and neither had any objection to the Children being in her care, the error is inconsequential.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 13 of 14
grant Grandmother some sort of temporary custody over the Children were not
independently pursued by any of the parties. Father suggests that the court,
DCS, or the guardian ad litem could have pursued these possibilities, but this
merely shows that the State’s intervention is necessary. 8
[24] Furthermore, based upon its initial intake assessment, DCS recommended that
the Children each have counseling, and as a result, counseling sessions had
been scheduled. Although Father testified that he had taken the Children to
counseling on his own in 2020 or 2021, neither Father nor Mother currently has
the ability to take the Children to counseling. Father contends that
Grandmother would take the Children to counseling, but there is no evidence
that Grandmother would arrange for counseling independent of the counseling
sessions scheduled through DCS. We conclude that the evidence is sufficient to
establish that the coercive intervention of the court is necessary. Accordingly,
we affirm.
[25] Affirmed.
Riley, J., and Mathias, J., concur.
8
Father’s reliance on N.C., 72 N.E.3d 519, is misplaced. There, the allegations supporting the CHINS
petition involved only the mother’s neglect. The child was placed with the noncustodial father, and by the
time of the factfinding hearing, the father had obtained a custody order and DCS had no concerns about
placement with him. On appeal, we concluded that the coercive intervention of the court was unnecessary
because the child could not be returned to mother’s care without a court order. Id. at 525.
Court of Appeals of Indiana | Opinion 23A-JC-1285 | November 21, 2023 Page 14 of 14