ILNews

COA reverses termination over rule violation

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The Indiana Court of Appeals split today in its decision to reverse the termination of a mother's parental rights. The majority found the trial court abused its discretion in allowing the mother's trial counsel to withdraw her appearance under a local court rule.

In K.S. v. Marion County Department of Child Services and Child Advocates Inc., No. 49A02-0905-JV-384, mother K.S. claimed the trial court shouldn't have let her attorney withdraw on the date of the final hearing regarding K.S.'s rights to her daughter, A.S. The mother failed to participate in required counseling and classes and failed to appear at the termination hearings. K.S.'s attorney had sporadic contact with her and was unable to reach her by phone. K.S. had moved out of the state and her attorney was only able to reach her by e-mail. The attorney received an e-mail from K.S. asking what happened after she failed to appear at a previous hearing. In her reply, the attorney asked what K.S.'s intentions were and whether she'd be at the final hearing. The attorney also informed K.S. that she wouldn't be able to adequately represent her if K.S. didn't communicate or appear. The attorney never heard back from K.S.

The trial court granted the attorney's motion to withdraw under a Marion Circuit and Superior Court Civil Division rule. Three days later, K.S.'s parental rights were terminated.

Judges Edward Najam and Michael Barnes concluded the trial court abused its discretion in letting the attorney withdraw because she failed to provide written notice to her client or the court at least 10 days before she intended to withdraw.

The judges interpreted the local rule to mean that the good cause exception only applies to the requirement that the attorney's written letter of intent be filed with the court at least 10 days prior to trial, and the other obligations of the local rule imposed on the attorney must still be considered. DCS argued the phrase "or upon good cause shown" would allow the attorney to withdraw even without providing the written notice because she had good cause.

The attorney's e-mail to K.S. didn't constitute the written notice, nor did she file anything with the trial court. K.S.'s rights were prejudiced by the noncompliance with the local rule, wrote Judge Najam, so the majority reversed the trial court, vacated the termination order, and remanded for further proceedings.

"If Mother's attorney complies with the local rule and Mother again fails to appear in person or fails to take the steps necessary to obtain new counsel within a reasonable time, the trial court may reinstate the termination order vacated by this decision," he wrote.

Judge James Kirsch dissented, arguing K.S. put her attorney and the trial court in an untenable position. The attorney couldn't give 10 days notice of her intent to withdraw because she didn't have that intent until K.S. failed to appear at the hearing. Under these circumstances, good cause was shown for not filing the letter.

"Had the trial court denied the request to withdraw and continued with the hearing, the attorney would have sat there as a potted plant, and the result would have been exactly the same as it is now - Mother's parental rights would have been terminated," he wrote.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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