ILNews

Supreme Court vacates parental termination for jailed mom

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A juvenile court abused it discretion by proceeding with a hearing and terminating a mother’s parental rights in her absence because she was in jail, the Indiana Supreme Court ruled Thursday. Her attorney’s failure to ensure she was heard from also denied her a fair hearing, justices ruled.

Justices vacated a termination order by Marion Superior Judge Marilyn Moores in In re the Involuntary Termination of the Parent-Child Relationship of K.W., a Minor Child, and His Mother, C.C. K.W. v. Indiana Department of Child Services and Child Advocates, Inc., 49S02-1407-JT-458. The mother’s attorney filed a motion for continuance until the mother was released.

“The trial court denied this request and held the hearing in the mother’s absence — the end result was the termination of her parental rights with respect to her son. Under the facts and circumstances of this case, we conclude that the denial of the motion for a continuance was an abuse of discretion,” Justice Steven David wrote for the court.

Two-year-old K.W. was declared a child in need of services a month after he was born after repeated instances in which his mother and father discontinued services, tested positive for drugs or were arrested, according to the record.

But the opinion notes that the hearing already had twice been continued, and found the judgment had to be vacated  because the mother, though represented by council, was deprived an opportunity to be heard from in any manner at the termination hearing.

The court relied upon the 11-factor test adopted in In re C.G., Z.G. v. Marion Department of Child Services, 954 N.E.2d 910, 922 (Ind. 2011), to reach its conclusion, while noting that test is typically applied to a motion to transport an incarcerated parent to a termination hearing.

“(T)he trial court opted to carry out a proceeding by which C.C.’s fundamental rights to parental autonomy were challenged, attacked, and taken away – without C.C.’s personal participation in any way,” the court held. “When viewed in such a light, we cannot help but find that C.C. showed good cause why her motion should be granted, and to do otherwise was clearly against the logic and circumstances of the case.”

The opinion also notes the mother’s attorney “certainly could have –    and probably should have” tried to arrange for her to be transported to the hearing.

“So while it is true that C.C.’s attorney attempted to mount a defense by cross-examining DCS witnesses and putting on one of his own, that is a far cry from saying that C.C. was heard at a meaningful time and in a meaningful manner and far from being fundamentally fair – and it was therefore prejudicial,” the court held.  

 

 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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