Children charged in juvenile proceedings where they face incarceration as a possible penalty, and who cannot afford to hire their own lawyer, are constitutionally entitled to public counsel. Indiana law goes further and requires a court to appoint counsel for any child alleged to have committed a delinquent act who does not have an attorney and who has not waived his right to counsel, without regard to whether the child is indigent. Effective January 1, 2015, under Indiana Supreme Court Rule 25, courts must appoint counsel to represent a child in a delinquency proceeding whenever:
- the child is facing removal from their home during or after the proceedings, and the court must appoint counsel before holding any hearing at which the child may be removed from their home; or
- the parent has interests that are adverse to that of the child; or
- there is a request to waive the child into an adult criminal court for prosecution.
The child may waive their right to counsel, but only after counsel is appointed to advise them, and then the waiver must “be made in open court, on the record and confirmed in writing, and in the presence of the child’s attorney.” Even for children who are not detained and for whom the prosecutor is not seeking detention at the conclusion of the proceedings, at the initial hearing the first thing the court must do is determine whether the child already has an attorney or has waived the right to an attorney, and if not the court must appoint counsel to represent the child.
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Detention or promise to appear
1) the child is unlikely to appear before the juvenile court for subsequent proceedings;
2) the child has committed an act that would be murder or a Level 1 felony, Level 2 felony, Level 3 felony, or Level 4 felony if committed by an adult;
3) detention is essential to protect the child or the community;
4) the parent, guardian, or custodian:
(A) cannot be located; or
(B) is unable or unwilling to take custody of the child; or
5) the child has a reasonable basis for requesting that the child not be released[;]
and the officer must immediately inform the parent of where the child is detained and for what reason. Otherwise, the officer must release the child with a written promise that the child will appear in the juvenile court on a specific date.
The frequency with which children suspected of delinquency are detained varies from county to county. For example, in Blackford County children are rarely ever detained unless they are older and are alleged to have committed a serious offense for which the prosecutor will seek to waive them into adult court. The Montgomery County circuit court judge estimates that approximately 10% of children are detained. In Lawrence County the juvenile referee estimates that perhaps 20% are detained, and the juvenile probation office estimates approximately one child is detained each month.
In Marion County, children who are taken into custody are processed at the first floor of the juvenile courthouse and detention center. There the probation officer conducts a risk assessment and assigns the child a numerical value from zero (lowest risk) to 12 (highest risk). Any child with a risk score of six or more is set to appear for a detention hearing the next day. All other children, with scores below six, are released to their parent on a promise to appear when ordered for their initial hearing.
Children have “detention hearings” (rather than bail hearings as for an adult). When a child is taken into custody and not released, a detention hearing must be held within 48 hours, not counting weekends and legal holidays, and the child must be released if the detention hearing is not held timely. Effective January 1, 2015, courts must appoint counsel to represent every child who is taken into custody, without regard to whether the child is indigent, and must do so before the detention hearing.
All of the juvenile courts in all of the sample counties consistently hold detention hearings within 48 hours of a child being taken into custody. They similarly consistently provide a public defense attorney to represent and meet with the child before the detention hearing, although the initial contact the attorney has with the child may be just moments before the hearing commences.
In all of the sample counties except Lake and Marion, the attorney appointed to represent a child at a detention hearing will continue to represent that child throughout the duration of the juvenile delinquency proceedings up to disposition. Some appointed counsel, but not all, will remain as counsel for the child for post-disposition hearings, probation violations, and all the way through expungement where it is allowed in a case. For example, public defender staff attorneys in Marion County remain on the case during all post-disposition proceedings, while conflict assigned counsel stop at disposition.
In Blackford and Warrick counties, when a detention or initial hearing is needed, the judge appoints the next attorney in rotation to represent the child. In Montgomery County, when a detention or initial hearing is needed, the probation office alerts the court’s staff and they contact the public defender administrator, who assigns the case to a specific attorney – most often one of the three contract attorneys who are primarily assigned to handle juvenile delinquency cases in the circuit court. Similarly in Scott County, the public defense administrator selects the specific attorney who will represent each child in a delinquency case, rotating the appointments between the two attorneys who contract to handle these cases and notifying the attorneys of the cases to which they have been assigned. In Lawrence County, the juvenile court notifies the public defender office to send an attorney for the detention hearing, and the public defender meets with the child in a conference room in the courthouse immediately before the detention hearing and at the hearing advocates for the child to be released. In Elkhart County, the magistrate holds detention hearings three days each week, on Monday, Tuesday, and Thursday; the two public defender office juvenile delinquency attorneys rotate the days they appear in court, so whichever is scheduled to be in court on the day of a detention hearing or an initial hearing is assigned to represent that client and meets with the detained children before court, either in the judge’s chambers or at the juvenile detention facility.
In Lake County, one contract lawyer handles all juvenile delinquency detention hearings held on Monday, Wednesday, and Friday afternoons, and she does not receive any other juvenile case assignments. She will not be the attorney who represents the child once a petition is filed.
In Marion County, one magistrate presides over detention hearings and initial hearings every day of the week in three morning sessions and two afternoon sessions. The twelve full-time juvenile delinquency attorneys take turns staffing these hearings, but it is random luck as to whether the attorney who represents the child at a detention hearing will be the same attorney who represents the child once a petition is filed.
At the detention hearing, the court must release the child to a parent, on the parent’s written promise to bring the child to court on a specific date, unless:
the court finds probable cause to believe the child is a delinquent child and that:
(1) the child is unlikely to appear for subsequent proceedings;
(2) detention is essential to protect the child or the community;
(3) the parent, guardian, or custodian:
(A) cannot be located; or
(B) is unable or unwilling to take custody of the child;
(4) return of the child to the child’s home is or would be:
(A) contrary to the best interests and welfare of the child; and
(B) harmful to the safety or health of the child; or
(5) the child has a reasonable basis for requesting that the child not be released.
Institution of prosecution and initial hearing
Like adults, children in juvenile proceedings have an initial hearing, which signals the commencement of the prosecution. As explained supra, if the child is detained or removal from the child’s home is possible, counsel must be appointed to represent the child before the initial hearing. Otherwise, at the initial hearing the first thing the court must do is determine whether the child already has an attorney or has waived the right to an attorney, and if not the court must appoint counsel to represent the child.
The Lawrence County juvenile referee does not allow children to waive counsel in juvenile delinquency proceedings and appoints a public defender to every juvenile charged with a delinquent act who does not have a private attorney.
In Lake County, six contract attorneys are each assigned to one daily court session each week for juvenile delinquency cases, handling however many cases they are assigned from initial hearing through conclusion, and these six attorneys also are assigned to either CHINS or TPR cases.
In Elkhart County initial hearings typically occur within 30 days of a petition being filed. The juvenile court mails an order to the child and his parents telling them when to appear for their initial hearing. The order includes information about the right to counsel:
You are further advised that you have the right and qualify for a lawyer to represent you. If you are going to deny the charges against you, you MUST contact the Public Defender’s office at 523-2357. Their office is located in our building and SERVICE IS FREE. You must contact their office immediately – THAT MEANS NOW AND TAKE THESE PAPERS WITH YOU. Otherwise, you can contact a private lawyer at your costs. If you appear in Court without contacting the Public Defender’s Office and one is appointed to you the day of the hearing, your hearing will be continued and you will have to return to Court at a later date. Failure to contact a Public Defender or hiring a private lawyer will result in waiving your right to a lawyer.
The Elkhart County public defenders meet with every child who contacts them, in advance of the initial hearing. If a child appears for his initial hearing without a lawyer and has not already contacted the public defender office, the magistrate orally informs him of his right to have a lawyer appointed and, if the child requests an attorney or seems at all uncertain, the magistrate appoints the public defender and will reset the initial hearing for a later date if time is needed for the attorney and client to prepare. In most juvenile delinquency cases in Elkhart County, the magistrate assigns a public defender without regard to whether the child is facing time in detention. In cases where the child is a runaway or the parent is an alleged victim, the court assumes there is a conflict in the family and always assigns a public defender. The magistrate encourages all children to accept public defense representation, but in a minor case, such as a child charged with shoplifting, the magistrate will allow the child to waive their right to a lawyer if that is what the child wishes to do.
In Marion County, one magistrate hears all of the initial hearings, and the twelve agency juvenile delinquency attorneys take turns staffing these hearings. The agency attorney meets briefly with the child and the parents before they appear in court, either in a private room within the detention facility for children who are in custody or in the public waiting area in the courthouse for children who are not in custody. Conversations in the courthouse waiting room are not confidential and can be heard by everybody nearby. At the initial hearing, the judge gives the child an opportunity to say whether he will have private counsel or wants to be represented by the public defender office. If the child wants appointed counsel, the judge appoints the public defender office (not a specific attorney). The agency attorney in the room hands the new client a form letter; it explains that the public defender “is the only person in the room who works for you,” directs the client to contact the public defender office with relevant information, and tells the client not to discuss their case with anyone. Juvenile delinquency cases are allotted to one of three other magistrates who sit in separate courtrooms and hear juvenile delinquency cases through conclusion on three days a week. The twelve agency attorneys are divided into three teams; four attorneys to each delinquency court, and the attorneys are assigned specific cases in their courtroom based on the complexity of the case and the attorney’s level of experience. A specific lawyer is assigned to each case within a week of the initial hearing, and the lawyer sends a letter to the client providing their name and telephone number.
At the initial hearing, the court informs the child of the charges alleged in the petition. The court must explain the possibility of waiver to an adult criminal court and ask the prosecutor whether he intends to seek such a waiver. The court also tells the child the “dispositional alternatives” (this would be the possible sentence for an adult) that can be imposed if he is “adjudicated a delinquent child” (for an adult, this means found guilty). Finally, the court must advise the child of his rights, including his right to be represented by counsel. The child is asked to “admit or deny” the allegations of the petition (in contrast to an adult pleading guilty or not guilty). Children in delinquency cases are entitled to discovery after the initial hearing under the same laws that govern discovery in adult criminal cases.
Waiver to adult criminal court
For the attorneys who represent these children, the workload is exponentially larger, yet the Commission caseload standards do not take this into account. As one Marion County juvenile delinquency lawyer explained, “waivers are counted the same” as any other juvenile delinquency case, yet the amount of work required is “double that of a normal case.” First the lawyer has to contest the waiver into adult court, and then, if successful, the lawyer still has to contest the allegations against the client in the delinquency fact-finding proceeding.
Fact-finding, disposition, and post-disposition
If a child is adjudicated delinquent or admits the allegations at the initial hearing, the court holds a “dispositional hearing” (the equivalent of sentencing for an adult). There is no mandatory time frame for how soon this dispositional hearing must be held, though it can be held immediately if a child admits the allegations at the initial hearing. In most cases, the court orders probation to prepare a predispositional report. At the dispositional hearing, the court considers:
- Alternatives for the care, treatment, rehabilitation, or placement of the child.
- The necessity, nature, and extent of the participation by a parent, a guardian, or a custodian in the program of care, treatment, or rehabilitation for the child.
- The financial responsibility of the parent or guardian of the estate for services provided for the parent or guardian or the child.
Unless inconsistent with the safety of the community and the best interest of the child, the court must order the least restrictive appropriate placement for the child that imposes the least restraint on both the child and his parents. Depending on the delinquent act for which the child is adjudicated, a court may: emancipate a child; remove the child from his home and place him under the wardship of someone other than his parent; place a child on probation, with any number of conditions; or order the child to a secure detention facility.
Unlike in adult proceedings, courts have continuing responsibilities for children after adjudication and disposition. The court must review the dispositional decree at least every six months and must hold a formal review hearing at least every 12 months after a child is removed from home or following the court’s dispositional decree, whichever is first. The court holds these hearings to determine whether the present plan is in the child’s best interest and whether the dispositional decree should be modified, which it may do on its own motion or that of any interested party. At least every 18 months, the court must hold a formal hearing on the issue of whether it is necessary for the court to retain jurisdiction over the child. Once the goals of the dispositional decree are met, the court must discharge the child. In most of the sample counties, the lawyers appointed to represent children in juvenile delinquency cases remain on the case, appearing with their client at every post-disposition hearing, until the child is discharged.
Paying for an indigent child’s lawyer
The fees that a juvenile convicted of a delinquent act (or more precisely, their parents) can be ordered to pay are established by statute and are expressly limited to the particular fees set out there. They include $120 in costs for each delinquency action, plus a bevy of other possible fees depending on the type of offense, notably including a $5 public defense administration fee.
In Lawrence County, for example, the juvenile probation office is responsible for collecting all payments assessed against children and their parents in juvenile delinquency cases. If payments due fall more than $100 behind, the juvenile probation office brings the child and his parents to an administrative hearing, held by probation supervisors, to inquire as to why they have not paid. If the probation office believes the parties are willfully neglecting to make ordered payments, it asks the prosecutor to file a rule to show cause against the parents and also against the child if he has turned 18 years old by that point. There have been occasions in Lawrence County where parents have been sent to jail for failure to pay assessments in their child’s juvenile delinquency case. The office can also ask the juvenile court to convert the ordered payments to a civil judgment and to garnish wages. Children who are on juvenile probation can complete their probation even if payments are still due; they are never violated simply for failure to pay.
A Note on CHINS and TPR Cases
CHINS and TPR cases are different from criminal and delinquency cases in several significant ways. First, they are civil in nature, rather than criminal. They are governed by a separate set of statutes and rules, have a different burden and standard of proof, and require training and experience in a broad range of areas entirely different than that needed in criminal and delinquency cases. To the extent that the same system and attorneys are appointed in CHINS/TPR cases as are appointed in criminal and delinquency cases, those attorneys must receive separate and different training and have different types of prior experience to effectively represent clients in all of these case types.
Second, the opposing counsel in these cases is not the office of the county’s elected prosecutor. Instead, a CHINS or TPR case is instituted and continually overseen by an attorney with the Department of Child Services (DCS). In considering the resources needed by publicly provided attorneys in order to effectively represent their clients, it is the resources of DCS that must serve as the comparison. As of August 2015, DCS reported having “a staff of approximately 3,800 employees” and operating “local offices in all 92 counties.” DCS receives both state and federal funding. By contrast, counties are wholly responsible for funding the representation of indigent parties in CHINS and TPR cases.
Third, a single CHINS/TPR case may involve as defendants multiple interested parents, guardians, and custodians who are all indigent and in need of public counsel. Similarly, a single case may be concerned with several children and the court may decide they need a public attorney to represent their interests. While one DCS attorney can represent the state’s interests in a CHINS or TPR case without a conflict, the indigent children and parents in these cases often have conflicting interests, such that each person must have their own individual attorney assigned to represent them. And these cases not infrequently involve (as children, or parents, or witnesses) some of the same people that the public defense system and attorneys are called upon to represent in criminal and delinquency cases, creating further conflicts for the public defense system.
Finally, CHINS cases in particular can span more than a decade during which the appointed counsel for the indigent parent, guardian, or child is responsible for their representation. For example, DCS could commence a child in need of services case in the interest of a baby and that case can continue in various stages of CHINS or TPR or both simultaneously until that baby reaches the age of 18, or even 21 under certain circumstances.
As a result of all of these factors, throughout the state CHINS and TPR cases consume a significant percentage of the available public attorney hours.
 In re Gault, 387 U.S. 1, 36 (1967); Bible v. State, 253 Ind. 373, 388 (Ind. 1970); Ind. Code §§ 31-32-2- 2, 31-32-4-1(1) (2015); Ind. Crim. R. 25 (eff. Jan. 1, 2015).
 Ind. Code § 31-32-4-2 (2015).
 Ind. R. Crim. P. 25(B) (eff. Jan. 1, 2015). In 2006, the National Juvenile Defender Center (NJDC) and the Children’s Law Center of the Central Juvenile Defender Center, in collaboration with the Youth Law T.E.A.M. of Indiana, evaluated and reported on representation provided to indigent children in delinquency proceedings in Indiana, using a sample of eleven counties. See National Juvenile Defender Center et al, An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (Apr. 2006). The 2015 changes in the right to counsel for children, enacted under Rule 25, are a good step toward remedying some of the concerns identified in the 2006 NJDC evaluation and report.
 Ind. R. Crim. P. 25(C) (eff. Jan. 1, 2015).
 Ind. Code § 31-37-12-3 (2015).
 Ind. Code §§ 31-37-4-1, -2 (2015).
 Ind. Code §§ 31-37-5-3(a), -5(a) (2015).
 Ind. Code § 31-37-5-4 (2015).
 Ind. Code §§ 31-37-5-3, -5 (2015).
 Ind. Code §§ 31-37-5-6; 31-37-6-2 (2015).
 Ind. Code § 31-37-6-4 (2015).
 Ind. R. Crim. P. 25(B) (eff. Jan. 1, 2015).
 Ind. Code § 31-37-6-6(a) (2015).
 Ind. Code § 31-37-6-6(d), (e) (2015).
 Ind. Code § 31-37-6-9 (2015).
 Ind. Code § 31-37-8-6; § 31-37-10-1 (2015). Before prosecutors decide whether to file a petition alleging a delinquent act, a probation intake officer conducts an informal investigation and prepares a report that is provided to the prosecutor and the juvenile court with a recommendation as to whether a petition should be filed. Ind. Code §§ 31-37-8-1 et seq. (2015).
 Ind. Code § 31-37-11-1 (2015).
 Ind. Code § 31-37-10-2 (2015).
 Ind. Code § 31-37-12-2 (2015).
 Ind. R. Crim. P. 25(B) (eff. Jan. 1, 2015).
 Ind. Code § 31-37-12-3 (2015).
 Order to Appear, provided by Elkhart Circuit Court juvenile magistrate.
 Ind. Code § 31-37-12-5(1) (2015).
 Ind. Code § 31-37-12-5(3) (2015).
 Ind. Code § 31-37-12-4 (2015).
 Ind. Code § 31-37-12-5(4) (2015).
 Ind. Code § 31-37-12-5(2) (2015). Children in delinquency proceedings have the right to be represented by counsel, to a speedy trial, to compulsory process to obtain tangible evidence and secure the presence of witnesses, to confront and cross-examine the witnesses against them, to introduce evidence on their own behalf, to refrain from testifying, and to have the state prove beyond a reasonable doubt that the child committed the charged delinquent act(s). Ind. Code §§ 31-32-2-1, -2; 31-32-4-1, 31-37-12-5(2) (2015).
 Ind. Code § 31-37-12-7 (2015). Except if the prosecutor is seeking a waiver to adult court, the juvenile court cannot accept an admission or denial from the child at the initial hearing. Ind. Code § 31-37-12-74(1) (2015).
 Ind. Code § 31-32-10-1 (2015).
 Ind. Code § 31-30-3-1 (2015). Waivable child offenders are:
- any child of any age who is charged with an act that would be a felony if committed by an adult and has previously been convicted of a felony or non-traffic misdemeanor, Ind. Code § 31-30-3-6 (2015);
- children aged 12 and older, for murder, Ind. Code § 31-30-3-4 (2015);
- children aged 14 and older, for a heinous or aggravated felony and for a felony that is part of a repetitive pattern of delinquent acts, Ind. Code § 31-30-3-2 (2015); and
- children aged 16 and older, for any level 1 to level 4 felony, a level 5 felony involuntary manslaughter, a level 5 felony reckless homicide, and a felony controlled substances offense, Ind. Code §§ 31-30-3- 3, -5 (2015).
 Ind. Code § 31-30-3-7 (2015).
 Ind. Code § 31-37-11-2 (2015). But these times can be lengthened if requested or caused by the child, due to congestion of the court calendar, or due to the absence of a prosecution witness. Ind. Code §§ 31-37-11-6 through -10 (2015).
 Ind. Code § 31-32-1-2 (2015).
 Ind. Code §§ 31-30-4-1 et seq. (2015).
 Ind. Code § 31-37-11-3 (2015).
 Ind. Code § 31-37-13-1(a) (2015).
 In re Winship, 397 U.S. 358, 365-366 (1970); Ind. Code § 31-37-14-1 (2015).
 Ind. Code § 31-32-6-7 (2015).
 Ind. Code § 31-37-11-2 (2015).
 Ind. Code § 31-37-12-9 (2015).
 Ind. Code § 31-37-13-2 (2015).
 Ind. Code § 31-37-12-9(a) (2015).
 Ind. Code §§ 31-37-12-9(a)(2); 31-37-17-1 et seq. (2015).
 Ind. Code § 31-37-18-1 (2015).
 Ind. Code § 31-37-18-6 (2015).
 Ind. Code § 31-37-18-9 (2015).
 Ind. Code § 31-37-18-6 (2015).
 Ind. Code §§ 31-37-19-1 et seq. (2015).
 Ind. Code § 31-37-20-2 (2015).
 Ind. Code §§ 31-37-20-2, 31-37-22-1 (2015).
 Ind. Code § 31-37-20-3 (2015).
 Ind. Code § 31-37-20-7 (2015).
 Ind. Code § 31-32-4-4 (2015) (“Payment for counsel shall be made under IC 31-40.”); Ind. Code § 31-40-1-1 (2015) (stating that “this article applies to costs paid by . . . counties under this chapter” including in juvenile delinquency cases).
 Ind. Code § 31-40-1-3.8(c) (2015).
 Ind. Code § 31-40-1-3.8(a), (b) (2015).
 Ind. Code § 31-31-2-1 (2015) (“The fees in juvenile court proceedings are set under IC 33-37-4-3.”)
 Ind. Code § 31-31-2-3 (2015). But see Ind. Code § 31-31-2-2 (2015) (“An adult who is convicted of an offense in the juvenile court is liable for costs under IC 33-37-4-1.”).
 Ind. Code § 33-37-4-3(a) (2015).
 Ind. Code § 33-37-4-3(b) (2015).
 Ind. Code §§ 33-37-4-3(b)(9), 33-37-5-21.2 (2015).
 The same systems and attorneys are also responsible for representing indigent parties in involuntary mental health proceedings, but these cases represent such a small number of the whole that their impact is not addressed.
 See Ind. Code §§ 31-34-1-0.1 et seq. (2015) (CHINS); Ind. Code §§ 31-35-2-1 et seq. (2015) (TPR).
 See e.g. Ind. Code §§ 31-34-2.5-4, 31-34-9-1(a) (2015) (CHINS); Ind. Code §§ 31-34-2.5-4, 31-35-3-6 (2015) (TPR).
 Indiana Dep’t of Child Services, Annual Report to the State Budget Committee and Legislative Council 2 (Aug. 2015). DCS’s duties go beyond handling CHINS and TPR cases; their mission is to: protect children who are victims of abuse or neglect; strengthen families through services that focus on family support and preservation; and administer child support, child protection, adoption, and foster care. Indiana Dep’t of Child Services, Annual Progress and Services Report July 1, 2015-June 30, 2016 at 7 (June 30, 2015).
 DCS was established as a state level agency in January 2005. Prior to that, its work was accomplished by the Division of Family and Children within the Family and Social Services Administration of the state. Indiana Dep’t of Child Services, Annual Progress and Services Report July 1, 2015-June 30, 2016 at 7 (June 30, 2015). Over the ten years since its inception as a state agency, its total appropriations from state and federal funds have nearly tripled from $313,146,976 (FY 2005-2006) to $928,683,776 (FY 2014-2015). See Indiana State Budget Agency, As-Passed Budget, Table A – Expenditure Summaries/Appropriations Overview by Agency, 502 Department of Child Services (2005-2007, 2007-2009, 2009-2011, 2011-2013, 2013-2015).
 Ind. Code §§ 31-32-2-5; 31-32-4-3; 31-34-4-6 (2015).
 See e.g. Ind. Code § 31-32-3-5 (2015).