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COA rules trial court should have allowed DCS to withdraw adoption consent

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The Department of Child Services’ failure to investigate a child’s aunt as a possible adoptive parent – and a trial court’s refusal to allow DCS to withdraw consent for foster parents to adopt after acknowledging its failure – prompted the Indiana Court of Appeals to reverse a trial court order granting the foster parents’ petition to adopt.

The court on Tuesday ruled that Jackson Circuit judge William E. Vance erred in not allowing DCS to withdraw its consent for the foster parents to adopt in In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services, 36A01-1109-AD-407. The appellate panel ordered the trial court to reconsider evidence after DCS completes an investigation of the child’s aunt, M.R., as a potential adoptive parent.

N.W.R., a 2-year-old boy, was determined to be a child in need of services less than three weeks after his birth. He was placed with foster parents R.B. and R.B., unbeknownst to the child’s aunt, M.R., with whom N.W.R.’s three siblings, ages 3, 4 and 5, had been placed.

M.R. requested the child be placed with her, court records show, but DCS told her that her East Chicago home was too far away and conflicted with the child’s permanency plan goal of reunification with biological parents.

As the aunt persisted, she was granted visitation rights that increased over time. But before N.W.R’s first birthday, the biological parents’ rights were terminated, and the court ultimately granted the foster parents’ adoption petition, in the course of which it denied DCS’s motion to withdraw its consent.

The appellate panel instructed the trial court to “review the evidence de novo to determine which adoptive placement is in the best interests of the child, giving due consideration to the evidence showing that these siblings should be placed together. The court shall not consider the passage of time or maintenance of the status quo dispositive.”

The unanimous opinion written by Judge Edward Najam Jr. said that when DCS informed the court of its desire to withdraw consent because it had not carried out its obligations to determine placement in the child’s best interest, the court had an obligation to allow the withdrawal of consent.

“DCS had the integrity to declare on its own initiative that it had failed to meet its statutory duty. And this notice by DCS that its investigation was incomplete went directly to the heart of the adoption because it is the court’s responsibility to determine the best interests of the child based upon a full investigation of credible placement alternatives,” Najam wrote. “The court’s ruling against DCS’ motion to withdraw its consent affected the substantial rights of the parties and was not harmless.”

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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