Inattentive mom’s loss of custody upheld; pauper status granted

February 27, 2019

A mother trying to further her education without a stable income lost her appeal to keep custody of her son after she twice left him unattended due to substance abuse but was granted her request to make the costs of her case a public expense.

After Micayla Smith admitted to twice leaving her 3-year-old child G.M. unattended while she slept off her marijuana high, G.M.’s father Nathan McPheron filed an emergency petition for modification of physical custody.

Smith had fallen asleep with her boyfriend after smoking marijuana, once leaving G.M. unattended on the couple’s third-floor apartment balcony. In a separate but similar instance, G.M was found wandering the street roughly four blocks away from home while Smith slept after smoking marijuana.

Although a trial court found the situation was not an emergency, it allowed McPheron to continue his modification petition on a nonemergency basis, ultimately granting him physical custody of G.M. However, it noted both parents showed immaturity in finding lengthy periods of time in which McPheron had failed to pay more than $1,000 in child support.

When the trial court ordered McPheron pay that support back, Smith was rejected on her indigency appeal and found to be voluntarily unemployed because she decided to leave a paid job for an unpaid internship.

The Indiana Court of Appeals affirmed the trial court’s decision in Micayla N. Smith v. Nathan W. McPheron,18A-DR-29, finding the modification order was not clearly erroneous and that the trial court did not abuse its discretion in declining to hold McPheron in contempt for his child-support arrearage. It further denied Smith’s assertion that the trial court abused its discretion in not awarding her attorney fees based on McPheron’s failure to pay child support.

However, the appellate court did find the trial court abused its discretion when it failed to recognize Smith’s attempt to pursue a new career path was the reason for her voluntarily unemployment.

“While the trial court has broad leeway in determining indigency, the effect of the trial court’s judgment here is to dissuade Mother from either pursuing a new career path or from pursuing her constitutional right to appeal,” Judge Edward Najam wrote for the court. “We conclude that Mother’s voluntary unemployment, without a simultaneous finding that that voluntary unemployment is without just cause, is not a sufficient basis on which to support the denial of her motion to proceed in forma pauperis.”

The appellate court thus reversed and remanded with instructions to have the costs of the preparation of the record of the proceedings, including the transcript, assessed as a public expense.


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