State intervention needed in CHINS case due to father’s OWI convictions, alcohol issues, COA affirms

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A father’s multiple arrests and alcohol abuse issues necessitated removing his three children from his home and placing them with their maternal grandmother, the Court of Appeals of Indiana affirmed Tuesday.

According to court records father N.M. and mother J.C. have three children: B.M., C.M. and S.M.

In 2015, due to the mother’s incarceration, she and the father entered into an agreement that granted N.M. custody of the children.

After J.C.’s release in 2017, the father retained custody.

In 2022, the children were on spring break with N.M. in Florida.

Throughout the break, they called and texted their mother expressing apprehension over N.M.’s conduct, including him leaving them alone in a hotel room and not returning for a long time. In one call, they told their mother that they were “scared that their dad was driving with them drunk and he was swerving[.]”

N.M. was arrested and charged with operating while intoxicated as a third violation within 10 years.

The Florida Department of Child Services detained the children and placed them in foster care until the mother was able to travel to Florida to retrieve them.

The mother and the children returned to Indiana and lived with the children’s maternal grandmother for the next six months.

J.C. filed a request for an emergency change of custody, but before the court ruled on the request, she returned the children to N.M.’s care, at his insistence, after he was released on bail and had returned to Indiana.

In December 2022, the grandmother contacted Auburn Police Department Officer Jeffrey Arnett and requested that he accompany her to the father’s residence to check on the children.

Arnett informed N.M. that he was not going to leave until he confirmed that the children were safe. N.M. began yelling at the police so loud “that everyone in the neighborhood could hear.”

Ultimately, N.M. was detained so that the police could enter the residence to check on the children. He was later charged with resisting law enforcement and disorderly conduct.

On Jan. 12, the Indiana Department of Child Services filed a petition alleging that the children were CHINS because the 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 the mother was unable to provide for the children’s needs.

The DeKalb Circuit Court held initial and detention hearings and ordered the children to be removed from their parents’ care. DCS placed the children with the grandmother.

N.M. asked the court to appoint an attorney based upon his indigency, and the court appointed Keven Likes.

On Feb. 15, the 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.

Meanwhile on March 6, the trial court held a factfinding hearing.

At the beginning of the hearing, Likes informed the court that N.M. had said “he wasn’t interested in signing an agreement and he was interested in representing himself.” Likes moved to withdraw from the case, but the trial court denied the withdrawal motion.

On March 22, the trial court issued an order finding that the children were CHINS and that removal from the home environment was in their best interests. The court subsequently issued a dispositional order for the children to remain outside the home and for father to contact the family case manager every week.

N.M. appealed, arguing that by denying Likes’ motion to withdraw, the trial court denied the father the right to represent himself.  He also argued that there was insufficient evidence to sustain the CHINS adjudications.

The Court of Appeals affirmed in full, with Judge Terry Crone writing.

With regard to N.M.’s asserting the right to self-representation, Crone wrote that the appellate court was 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,” Crone wrote.

The appellate court was also 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.

As for his sufficiency argument, N.M. contended that he would willingly leave the children in the grandmother’s care while he is incarcerated, but Crone noted there is nothing to prevent the mother from removing the children from the grandmother’s care because the grandmother does not have legal custody.

DCS also 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,” Crone wrote. “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.”

Judges Patricia Riley and Paul Mathias concurred in In the Matter of B.M., C.M., and S.M. (Minor Children), Children in Need of Services, and N.M. (Father) v. Indiana Department of Child Services, 23A-JC-1285.

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