Denied counsel of choice, CHINS asks Supreme Court for help

Upon being retained by D.S. as counsel in his CHINS proceedings, Indianapolis attorney Rachel Roman-Lagunas visited him regularly, spoke with his family, arranged an in-person visit between him and his mother and assisted in getting him therapy.

“In other words, since being retained, Ms. Roman-Lagunas has served as D.S.’s advocate,” court documents assert.

However, in an unusual turn, her advocacy has been interrupted by the trial court blocking her participation in the case.

Now the matter is before the Indiana Supreme Court. An original action has been filed on behalf of D.S. against the Marion Superior Court and Judge Marshelle Broadwell, with the youth asking the five justices to let Roman-Lagunas be his lawyer.

The Supreme Court set a deadline of Sept. 24 for briefing but has granted a 14-day extension to the Indiana Attorney General’s Office, which is representing the trial court and judge.

Gavin Rose

Gavin Rose, senior staff attorney at the American Civil Liberties Union of Indiana, is representing D.S. before the Supreme Court.

“We think that the right to counsel is a fundamental component of due process, especially when you’re talking about a child who’s going to have difficulty exercising their rights to be heard and to confront and review evidence and stuff like that without the help of an attorney,” Rose told Indiana Lawyer. “So we think the legal arguments are pretty straightforward.”

In its motion to the Supreme Court requesting more time, the attorney general’s office indicated the justices may not have to make a ruling. The court filing stated additional time was needed, in part, while the parties explored a resolution to the matter.

The AG’s office declined to discuss the specifics of the case but offered a general comment.

“All three branches of Indiana government take great care in guaranteeing that the State meets its obligations to Hoosier children — particularly the most vulnerable children who are involved in CHINS cases — because ensuring their best interests are a paramount concern for the Office of the Attorney General,” the state’s lawyers said. “We are unable to comment further given the pending litigation, but we are confident that the courts will appropriately resolve these issues.”

The Department of Child Services and Roman-Lagunas declined to comment.

Right to counsel of choice

Roman-Lagunas was retained by D.S. after being given a referral by the attorney representing him in an unrelated juvenile delinquency action, according to the ACLU’s brief filed with the Supreme Court. When the child in need of services petition was entered, the trial court determined the 13-year-old’s best interests would be served by placing him in the custody of DCS while the agency tried to find a suitable place with other relatives or reunified him with his parents.

The attorney, who is part of the Direct Representation Program at Child Advocates in Indianapolis, first appeared at a virtual permanency hearing in August. Orally rejecting Roman-Lagunas’ appearance, the trial court removed her from the virtual hearing.

Filing her reappearance the next day, Roman-Lagunas told the court that D.S., as a party to the CHINS proceedings, has the right granted by the Constitution and state statute to be represented byan attorney.

The court responded by again rejecting her appearance. In an order, the court found Roman-Lagunas “has no standing to appear in this case” and the court “has concerns that the representation may be the result of inappropriate sharing of confidential client information in violation of the Indiana Rules of Professional Conduct.”

Joel Schumm

Indiana University Robert H. McKinney School of Law professor Joel Schumm, who has represented indigent clients before the state’s appellate courts and worked on several landmark cases, described the case as “unusual.”

As Schumm explained, a lawyer filing an appearance in an Indiana court is typically a “routine act that generates no discussion or opposition.” He noted issues may arise when lawyers have a conflict of interest or try to appear too close to a trial date, but otherwise, courts have been “pretty emphatic about the importance” of litigants’ right to choose their own counsel.

The ACLU in its brief makes the distinction between having a right and being entitled. D.S., the ACLU argued, has the right to be represented in his CHINS proceeding by the attorney of his choice. But, the organization continued, an indigent child designated as a CHINS is not entitled to a court-appointed attorney at government expense.

“In a civil context, (when) you want to file a lawsuit against someone for what have you, you obviously aren’t entitled to have the public pay for your attorney,” Rose said. “But due process gives you every right in the universe to be represented by counsel if you choose to get one on your own.”

Entitled?

The question of whether Hoosier youngsters in CHINS and termination of parental rights proceedings are, indeed, entitled to court-appointed representation is currently being litigated.

In Nicole K. by next friend Linda R., et al. v. Terry J. Stigdon, Director of the Indiana Department of Child Services, 20-1525, the children’s attorneys argued Indiana is violating juveniles’ constitutional rights to due process and equal protection by failing to appoint them counsel in dependency proceedings.

The Southern Indiana District Court dismissed the case, advising the “better path” for the children would be to raise the claims in state court. After the 7th Circuit Court of Appeals affirmed the ruling and subsequently denied a petition for rehearing, the children are continuing their fight.

“We will be filing a petition for a writ of certiorari with the United States Supreme Court arguing that the children in our case should have been allowed to pursue their right-to-counsel claims in federal court,” said Kathleen DeLaney of DeLaney & DeLaney LLC, who along with the Children’s Advocacy Institute is representing the children.

The attorney general referenced this case in its motion for more time in the D.S. matter. According to Indiana’s top attorney, the issue in the D.S. case impacts the federal litigation and “a decision by (the Indiana Supreme Court) could dictate a rule that is applicable in all CHINS and Termination of Parental Rights cases across all counties.”

Schumm said the Indiana justices have traditionally not made broad rulings in original action proceedings. As examples, he pointed to the Supreme Court’s December 2020 denial of the Indianapolis Archdiocese’s petition for writ of mandamus and prohibition in the lawsuit brought by Joshua Payne-Elliott, a gay teacher fired from Cathedral High School. Also, more recently, the court denied the attorney general’s petition in the separation of powers dispute in Holcomb v. Bray, et al., 21S-OR-354.

Rather than original actions, the Supreme Court seems to prefer issues to come through the appeals process, where the briefing is more robust and the process allows for rehearings, Schumm said.

While the attorneys try to reach a resolution and the Supreme Court awaits additional briefing, the CHINS case involving D.S. is proceeding.

“She has built a relationship with him, she’s helped with any number of things over the last several months,” Rose said of Roman-Lagunas. “Building a rapport between the attorney and client is important … and doing so when it’s a kid is ever so much more so.”•

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