After being retained by DS as counsel in its CHINS proceeding, Indianapolis attorney Rachel Roman-Lagunas visited him regularly, spoke with his family, arranged for an in-person visit between him and his mother and the ‘helped to get therapy.
“In other words, since she was retained, Ms. Roman-Lagunas has been DS’s lawyer,” the court documents say.
However, in an unusual twist, his plea was interrupted by the trial court blocking his participation in the case.
The case is now before the Indiana Supreme Court. An initial action was filed on behalf of DS against Marion Superior Court and Judge Marshelle Broadwell, with the youngster asking the five judges to let Roman-Lagunas be his lawyer.
The Supreme Court set a September 24 deadline for the briefing, but granted a 14-day extension to the Indiana attorney general’s office, which represents the trial court and judge.
Gavin Rose, lawyer with the American Civil Liberties Union of Indiana, represents DS before the Supreme Court.
“We believe that the right to a lawyer is a fundamental part of due process, especially when you are talking about a child who is going to have difficulty in exercising his rights to be heard and to confront and consider evidence and things. like that without the help of a lawyer, ”Rose told Indiana Lawyer. “So we think the legal arguments are pretty straightforward.”
In its petition to the Supreme Court asking for more time, the attorney general’s office said judges may not have to make a ruling. The court record indicated that additional time was needed, in part, while the parties explored a resolution of the case.
The GA’s office declined to discuss the details of the case but offered a general comment.
“All three branches of the Indiana government are working to ensure that the state meets its obligations to Hoosier children – especially the most vulnerable children involved in CHINS affairs – because ensuring their best interests are of paramount concern to the Hoosier. attorney general’s office. State attorneys said. “We are unable to comment further given the ongoing litigation, but we are confident that the courts will resolve these issues appropriately.”
The Children’s Services Department and Roman-Lagunas declined to comment.
Right to a lawyer of his choice
Roman-Lagunas was retained by DS after being referred by the lawyer representing him in an action for unrelated juvenile delinquency, according to the ACLU brief filed with the Supreme Court. When the petition regarding the child in need of services was brought, the trial court determined that the best interests of the 13-year-old would be served by placing him in the custody of DCS while the agency tried. to find a suitable place with other family members or to reunite him with his parents.
The lawyer, who is part of the direct representation program at Child Advocates in Indianapolis, first appeared at a virtual duty hearing in August. Orally rejecting the appearance of Roman-Lagunas, the court of first instance withdrew it from the virtual hearing.
Filing his reappearance the next day, Roman-Lagunas told the court that DS, as a party to the CHINS proceedings, had the right granted by the Constitution and state law to be represented by counsel.
The court responded by again rejecting his appearance. In an order, the court concluded that Roman-Lagunas “did not have standing to appear in this case” and the court “fears that the representation may have been the result of inappropriate sharing of confidential information about infringing clients. Indiana Rules of Business Conduct. “
Joel Schumm, a professor at the Robert H. McKinney School of Law at Indiana University, who has represented indigent clients in state appeals courts and has worked on several landmark cases, called the case of “unusual”.
As Schumm explained, a lawyer filing an appearance in Indiana court is usually a “routine act that does not generate discussion or opposition.” He noted that problems can arise when lawyers have a conflict of interest or try to appear too close to a trial date, but otherwise the courts have been “quite adamant about the importance” of litigants’ rights. choose their own lawyer.
The ACLU in its brief makes the distinction between having a right and having a right. DS, argued the ACLU, has the right to be represented in its CHINS proceeding by counsel of its choice. But, the organization continued, a needy child named as CHINS is not entitled to a court-appointed lawyer at government expense.
“In a civil context, (when) you want to take legal action against someone for what you have, obviously you don’t have the right to charge the public for your lawyer,” Rose said. “But due process gives you every right in the universe to be represented by a lawyer if you choose to get one on your own. ” Entitled ?
Whether young Hoosier in CHINS and parental termination proceedings are actually entitled to court-appointed representation is currently in dispute.
In Nicole K. by next friend Linda R., et al. v. Terry J. Stigdon, Director of the Indiana Department of Children’s Services, 20-1525, children’s attorneys argued that Indiana violates the constitutional rights of minors to due process and equal protection by failing to appoint them as attorneys in addiction proceedings.
The Southern Indiana District Court dismissed the case, saying the “best course” for the children would be to take the claims to state court. After the 7th Circuit Court of Appeals upheld the decision and subsequently dismissed a request for a new hearing, the children continue their fight.
“We are going to file a certiorari petition with the United States Supreme Court, arguing that the children in our case should have been allowed to assert their rights to an attorney in federal court,” said Kathleen DeLaney of DeLaney & DeLaney. LLC, which, along with the Children’s Advocacy Institute, represents children.
The Attorney General referred to this case in his motion for more time in the DS case. According to the senior Indiana lawyer, the issue in the DS case affects federal litigation and “a decision of (the Indiana Supreme Court) could dictate a rule applicable in all cases of CHINS and termination of parental rights in all counties “.
Schumm said Indiana judges have traditionally not made broad rulings in initial action proceedings. As examples, he cited the December 2020 Supreme Court denial of the Archdiocese of Indianapolis’ petition for a writ of mandamus and prohibition in the lawsuit brought by Joshua Payne-Elliott, a gay teacher. graduated from Cathedral High School. In addition, more recently, the court dismissed the Attorney General’s petition in the separation of powers dispute. Holcomb v. Bray, et al., 21S-OR-354.
Rather than original actions, the Supreme Court seems to prefer issues to be dealt with through the appeal process, where the briefing is more robust and the process allows for rehearsals, Schumm said.
As lawyers attempt to reach a resolution and the Supreme Court awaits further information, the CHINS case involving DS continues.
“She’s built a relationship with him, she’s helped with a number of things over the past few months,” Rose said of Roman-Lagunas. “Building a relationship between lawyer and client is important… and doing it when it’s a child is even more so. “•