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Parental termination remanded over substitute magistrate’s findings

September 25, 2013

A father’s due process rights were violated when a juvenile court stripped him of parental rights based on findings of facts prepared by a magistrate who did not hear from and observe witnesses, the Indiana Court of Appeals ruled Wednesday. The magistrate took over the case after another magistrate, who had conducted the evidentiary hearing in his case, resigned.

In the appeal arising from the court of Marion Superior Judge Marilyn A. Moores, the appellate panel reversed the termination order and remanded for a new evidentiary hearing followed by new findings of fact and conclusions of law.

Magistrate Julianne Cartmel conducted an evidentiary hearing in October 2012, but she resigned her position before findings could be provided to the court, and the case was transferred to magistrate Larry E. Bradley. The case is In the Matter of the Involuntary Term. of the Parent-Child Rel. of D.P., Minor Child, and her Father, D.P.; D.P. v. Indiana Dept. of Child Services and Child Advocates, Inc., 49A02-1303-JT-245.

“DCS has presented no authority, and we find none, suggesting that a magistrate should be treated any differently from a trial judge in a situation where the magistrate makes factual findings without having had the opportunity to hear the testimony and observe the witnesses,” Judge Rudy Pyle III wrote for the panel, which included Judges Mark Bailey and Melissa May.

“As such, we conclude that Father’s due process rights were violated in the instant matter. Magistrate Bradley could not properly resolve questions of credibility and weight of evidence because he did not have an opportunity to hear the evidence and observe the demeanor of witnesses,” Pyle wrote.


 

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