*1 208 special
heart of this matter is the nature inescapably of leads to the conclusion right to counsel. among the most appellant was entitled to withdraw important fundamental and constitutional plea guilty. former guarantees serving to insure the fair trial I am therefore in accord with the cases, of criminal and courts have consist of the Fourth District ently demonstrated a perceptibly greater must be reversed and remanded for further degree diligence insuring it. To illus proceedings. this, Judge trate Miller for the Fourth Dis trict of Appeals quoted the following California, Faretta v. 422 U.S. 2525, S.Ct. L.Ed.2d 562: manages accused his own de-
“[w]hen
fense, relinquishes, he as a purely factual
matter, many of the traditional benefits right
associated with the to counsel. For reason, represent himself, in order to of B.C. In re the WARDSHIP ‘knowingly accused must and intelli- Johnson v. gently’ forego 1461]. [58 723-724 Cf. Von Moltke v. S.Ct. Zerbst, 1019 at [68 those 304 U.S. relinquished 1022-1023, 316, 323-324, Gillies, [458] benefits. 82 L.Ed. 332 U.S. at 464- Supreme Court of Indiana. No. 1182S412. Nov. Black, (plurality opinion J.). 309]
Although a defendant need not himself
have the experience lawyer skill and of a competently order and intelligently to self-representation,
choose he should be
made aware the dangers and disadvan-
tages self-representation, so that
record will establish that ‘he knows what doing
he is and his choice is made with
eyes open.’ Adams v. United ex States
rel.
S.Ct. 236 at
McCann,
guilty stated that appellant had the right to
an attorney and that he a right had to talk attorney.
to an nothing There is in those
flat, unembellished judge, statements of the
or in responses of appellant, that shows
appellant any was aware of of the “tradi-
tional benefits associated with the right to
counsel" or the “dangers and disadvan-
tages” serving lawyer. as one’s own
This simply record is barren of rational upon
basis to infer that at the time
appellant responses uttered his to the judge,
he significance waiving was aware of the right so, This being to counsel. post-conviction presented to *2 pur- all of Public Welfare for
Department found that the poses. The Court properly did not consider Superior Court illness and therefore reversed L.C.’s mental judgment. that court’s We find the Court Appeals wrong in its and ac- transfer, grant vacate the cordingly and Appeals, of the Court of Superior things. affirm the Court in all the Allen County November On peti- Welfare filed a Department of Public temporary wardship of B.C. requesting sought Department specifically care, and control of B.C. for aid and custody day, the trial that same placement. On emergency order in favor of court issued making temporary B.C. a Department aid, temporary supervision ward for The need for this action be- placement. L.C., apparent suffering when came illness, gave twenty-month-old B.C. mental whom she did not know while in couple to a department lot of a store. parking later, went to the Fort days Four Mental Health Association for as- Wayne locating B.C. since she had lost sistance in peo- number of the telephone the name and given Through she had B.C. ple to whom the Association and with the the efforts of media, was news B.C. located. aid of the however, time, the Mental Health By not locate L.C. When Association could where she not return to the house L.C. did hour, the staying by a reasonable had been Lowenstein, Jr., Wayne, L. Fort Solomon of Public Welfare obtained Department appellant. for placed court order and B.C. above described Adair, Larmore, Beers, Philip Perry, H. foster care. emergency Larmore, Wayne, appel- Mailers & Fort hearings on the proceedings Several lee. December wardship of B.C. followed. On filed a Verified ON PETITION TO TRANSFER Mother’s Visitation Petition to Abate PIVARNIK, Justice. January Rights. On conditionally and the trial court comes to us Petition of the was held This cause request Department’s abatement of Allen denied the Department of Public Welfare temporary wardship Indiana, continued B.C.’s County, transfer from the but ninety days. On period not to exceed Appeals. Appeal for a Third District Court filed April was taken to review a decision originally accepted by was report which terminating progress August hearing. without relationship between trial court daughter-mother a review hear- mother, trial court held L.C., making natural ward- temporary continued B.C.’s ing of the Allen permanent B.C. a ward ship for a second nine- Reasonable services have been to exceed offered ty days. August 31, on Depart- parent Also assist him in obligations, ment and ei- permanent filed a Petition for ward- accept he ther has failed to them or ship for all and to purposes pa- ineffective; been rights. Attorney rental L. Lowen- Solomon stein, Jr., subsequently appointed as (4) Termination is in the best interests of *3 ad litem. guardian child; L.C.’s September On and 1979, L.C., counsel, Request a filed (5) county department has a satisfac- Production to of Documents directed plan and tory for the care treatment of Department which was approved by the the child.” 22, 1979, trial court. On October the De- entering its the trial court judgment, partment filed Amended Petition for following findings: made Relationship, Termination Parent-Child “The (1) Court now finds and orders: which to L.C. moved dismiss. L.C.’s motion the child has been removed from its 26, 1979, was denied. On October and (6) for at mother least six months under a again on November trial court decree, dispositional January to-wit: Department’s heard evidence on the 1979; (2) been services have offered or Amended Petition. At the November provided to said to assist her in mother hearing, counsel informed the trial court fulfilling her parental obligations, to-wit: been the Rich- L.C. had committed to medication, counseling, hospitalization, mond Hospital pursuant to the trial State discharge planning, transportation, child court’s order another involving cause visitation, attempted family location of granted L.C. The trial court a thereupon friends, finding and assistance in continuance until a written evaluation could regular employment; (3) stable home and be the hospital, again received from such service either been refus- wardship. January continued B.C.’s ineffective; (4) been ed or have there is a 1980, the concluded its probability reasonable conditions on Department’s Amended Petition and resulting in the removal child’s will not entered terminating its remedied, i.e., initial abandonment of be parent-child relationship with The tri- to strangers, instability the child of home al guardi- court also ordered the temporary job skills, life, inability lack of to find and anship Department of B.C. continued in the job periods, for more than brief hold subject of Public Welfare to further order. child, inability support herself and the On March the trial court ordered and refusal failure the parental alleged of B.C.’s Welfare Department and other biological father terminated and (5) service agencies; social termination is Department be made for all guardian in the best interests of child who has purposes including adoption. since November flourished in a environment,
This cause pursuant was tried to Ind.Code care and is foster entitled (Burns 1980), provides regular, stable home to a reliable follows: support; (6) financial emotional De- of Public Welfare has a partment satis- petition
“A to terminate the parent-child factory plan for the and treatment care relationship involving delinquent child child, i.e., continued foster care and or a need child in of services... must placement adoption.” ultimate allege that: (1) The parent for dispositional child decree; least six has been removed from his [6] months under a (1) issues value to there was presented support sufficient evidence of this appeal trial court’s are: (2) There is reasonable that there was a finding proba- reasonable the conditions that resulted in his remov- that the conditions which bility resulted in remedied; al will of B.C. from L.C. the removal would not be remedied; (2) whether was. L.C. consistently respond failed Department pro- Department’s of Public Welfare failed to letters or other communi- adequate employment vide reasonable and services to cations. Her was extremely sporadic days to assist her in as she worked a few her obligations; each of never jobs. whether the trial court several different erred admitting support into evidence certain contributed financial to B.C. As reports Judge pointed of Public Wel- Hoffman out in his dissent- fare which hearsay. ing opinion contained below: “The evidence before court was
I perhaps summarized in best a statement during It is a well established made cross-examination one of and acknowl edged rule that the Welfare caseworkers when we review a case in who had handled this matter which a trial court has findings rendered *4 law, fact outset: and conclusions of we will not set aside that court’s unless it is T see in her that would nothing history
clearly Furthermore, erroneous. we will any degree indicate that she will attain reweigh neither the evidence nor reassess that I have stability. only stability credibility witnesses. To do oth her, ever seen her —in as far as her emo- erwise would be to substitute our judgment self, hospitalized. tional is while she was judge. that of the trial generally: See hospi- Those times when she has not been Miedl, Ind., (1981) Matter of 425 N.E.2d talized, has failed to take her medi- she Matter of Myers, Ind.App., 417 cation, place she has failed to maintain a 926, 930; Leckrone, (1980) Matter of live, job, she has failed to maintain a Ind.App., 413 N.E.2d and I see no indication that she will ever reasonably in the again be able to do that The record that before us shows I don’t think that there near future. many governmental and agencies charitable that when she is any guarantee released gave attempted to give aid to L.C. such that she Hospital from Richmond will that she properly care for B.C. Un even on her own volition continue with fortunately, L.C. either refused prof fact, that counseling. And I know for a fered aid or cooperate. failed to For exam of institu- you people cannot force outside ple, L.C. was medicine calculated counseling, or even engage tions to to improve her condition but she refused or engage, so far as to come in for their failed to take it. subsequent Provision was they even to take it once medication —or ly made to administer by the medication ” it.’ injection weeks, every two but L.C. failed keep her appointments protocol. for this We find no reason to reverse trial placed group L.C. was in several homes but that some court on the mere claim medical was uncooperative program might might possibly so with the exist which staffs of each that that a rea- the homes refused to take her cure L.C. The record indicates Arrangements back. were also made for sonable effort was undertaken to cure L.C. procedures employed L.C. to visit with B.C. but L.C. would not and that the medical appear, appear extremely or would late. either failed or L.C. refused to occasion, there- helped. L.C. caused such trouble such that she was not We one. during Judge her visitation that police agree were fore Hoffman fact, required hearing any her. even without evi- ignored remove trier of was most plan expert, casework established for her dence from a medical or not fact, determining In capable Public Welfare. it, probability once she refused to discuss out there was a reasonable stormed would removal Department’s anger, warranting office in conditions fact, then if the trial disappeared for several months with not be remedied. In even psychi- informing testimony out court had where she received progress reports made suggesting atrist that L.C.’s and 7 were mental condi- Public Welfare to the trial Department of changed, could the trial court could his order. L.C. claims that judge upon reasonably still have reached a contradicto- contain and there- hearsay these exhibits ry conclusion based on the evidence before have been ruled inadmissible. fore should it. objects reports specifically matter The record shows that this was con- contain references to statements and Superior before the for a other than the case by people clusions made approximately two years before the court reports. Despite worker who authored judgment. entered its We now find that to this significance L.C. now ascribes Superior ample Court had more than error, particular objection was alleged support evidence of value to its two exhibits were not raised when these conclusion that there was a reasonable trial court for ad- being considered justi- the conditions which fact, objection L.C. mission. remedied, fied B.C.’s removal would not be during these exhibits raised about and that it was in interest B.C.’s best did not fall within the these exhibits parental authority. terminate L.C.’s Mat- to the court pleadings normal standards of Miedl, supra. Accordingly, ter of we hold in the form of letters ad- since were the Third District Court of the court. We will not allow dressed to finding erred in objection before the trial party to raise Court did not have sufficient evidence to and then raise to this court differ- support judgment. its never objection judge ent *5 to consider. appropriate opportunity had the II we find that L.C. has waived Accordingly, L.C.’s contention that the Allen addition, we find that issue. Welfare Public in Exhibits 5 alleged hearsay statements provide failed to reasonable services to as and con- largely and 7 were statements fulfilling parental obligations sist her in her personally who testified people clusions of is without merit. The version of Ind.Code whatev- anyway. trial court To before the applicable in this case dictates § admitting by court erred er extent the trial provided that such services be or offered. exhibits, it er- we hold was harmless these 31-6-5-4(3) (Burns 1980). Ind.Code As merely cumula- evidence was ror since this above, however, we have indicated L.C. was evidence before tive of other by offered many services justified which trial court by Welfare and several other so not find' reversible reached. We do specifi cial The record agencies. services this issue in this case. error on from cally ample testimony contains several hereby granted, opinion Transfer is failed to cooperate witnesses Court of is va- the Third District services and availing herself of the offered is af- cated and by any plans failed to abide estab things. all firmed in we Accordingly, lished for her find benefit. court had sufficient evidence PRENTICE, J., GIVAN, C.J., concur. it to conclude as it did that reasona before HUNTER, J., separate opin- dissents with either ble services had been DeBRULER, J., concurs. ion in which her in her offered to L.C. to assist HUNTER, Justice, dissenting. services parental obligations, and by were refused either ineffective or from the ma- respectfully dissent I must and decision of opinion. jority III which be found Appeals, may the Court B.C., (1982) Ind.App., argues Wardship that the trial re Finally, L.C. at In P.J., (Hoffman, dissenting), admitting court erred Exhibits State’s 433 N.E.2d be disturbed. Exhibits 5 should not numbered 5 and 7 into evidence. Appeals acknowledged, optimum
As
Court of
result is reached.
In the Matter
catalyst
(1981),
for the initial removal of
N. Children
107 Misc.2d
B.C.
custody
from the care
of her
natural
N.Y.S.2d
mother, L.C., was L.C.’s mental
illness— “Psychotropic
have the
drugs
effect of
schizophrenia. Her mental condition was
to his
restoring
person
pre-psychotic
inextricably
with
intertwined
state.
If
behavior
an individual had a well-inte-
opinion,
grated
detailed
the majority
personality
from her
before
experiencing
act of giving
strangers
psychotic episode,
drugs
B.C. to
in a
should re-es-
parking
integrated personality
lot to her
tablish that
inability
job
to hold a
and her
pre-psychotic
allow
functioning
failure to
levels.
social service
Conversely, a
with a
person
poorly inte-
agencies involved in the attempts to help
grated pre-psychotic personality would
her. Evidence was introduced that via
not have
personality re-integrated.
their
medication, L.C.’s mental health was im-
importance
is therefore of vital
to as-
proving during the
temporary
certain the person’s
prior
condition
wardship.
Prior to the
peti-
on the
Id.,
mental
manifestation of the
illness.
tion to
parent-child
terminate her
relation-
at 1021.”
N.Y.S.2d
ship, however, L.C. was committed to Rich-
Id., Ind.App.,
That
would be
societal
here,
of Appeals
dent
for as
Court
rec-
in
Ind.Code
reflected
its enactments. See
ognized,
rights
parents
in their natu-
(Burns
Repl.);
1980
Ind.Code
31-6-1-1
§
among
ral children are
the most basic and
(Bums 1980
see
31-6-4-16(d)
Repl.);
§
rights
fundamental
afforded citizens
our
Depart-
generally,
Perkins v. Allen
Const,
United States Constitution. U.S.
Welfare,
Ind.App.
(1976) 170
ment of
XIY;
Illinois,
Stanley
amend.
v.
405
171,
(1923), rights parental ‘basic civil termination proach Skinner 535, Oklahoma, 541, v. 86 L.Ed. rights. (1942), S.Ct. rights say is not to That ‘[r]ights precious more ... than prop far regarded as nature. absolute in should Anderson, erty rights,’ May v. 345 U.S. termi- Rather, acknowledge is to 97 L.Ed. 73 S.Ct. extraordinary nation of those (1953). ‘It is cardinal with us irrevocably judicial determination custody, care nurture of child parent-child relation- breaks and ends the parents, primary reside first in the whose (Burns 1980 ship. Ind.Code § include preparation function and freedom which face our courts Repl.). Few matters obligations can sup state neither consequences. bear fundamental such Massachusetts, ply nor hinder.’ Prince v. 166, 652, 88 L.Ed. reason, petition For that 438 (1944). integrity mentally parental rights parent ill
family protection unit has found exami- should not be resolved without some Due Process Clause of Fourteenth concerning nation medical Nebraska, Amendment, Meyer supra, v. the mental condi- of whether probabilities at the Equal Pro remedied.” Ind.Code tion “will not be tection Clause the Fourteenth Amend 31-6-5-4(2), Schizophrenia and supra. ment, Oklahoma, v. supra, Skinner *7 may take in case the future course at Ninth Amend we, are judges, as not matter which ment, Connecticut, Griswold v. evaluate;1 are rights equipped parental 14 L.Ed.2d 85 S.Ct. without not matter to be terminated J., concurring).” (1965) (Goldberg, complete presentation and examination Id., 405 at at relevant evidence. 558-9, quoted re L.Ed.2d B.C., Wardship Ind.App., reasons, supra, foregoing I dissent. For all 20-1. decision of permitted would have Appeals, of the funda- legislature’s recognition Our rele- of the evidence complete presentation and the mental nature of cured, obviously very significance might are rele- majority 1. discounts the program is no reason that medical matters. There “mere claim that some medical vant recovery regarding potential Majori- might possibly exist which cure L.C.” ty presented Opinion, supra. programs to the factfinder for That treatment should and, turn, schizophrenia and evaluation. do exist consideration 31-6-5-4(2), vant to Ind.Code supra, not have been
should disturbed.
I dissent.
DeBRULER, J., concurs. HARDEN, Appellant
Harold
(Defendant below),
v. Indiana, Appellee
STATE of
(Plaintiff below).
No. 182S18.
Supreme Court of Indiana.
Nov. 1982. 17, 1983.
Certiorari Denied Jan.
See 103 S.Ct.