ILNews

COA concerned about some details in termination case

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In affirming the involuntary termination of a mother’s parental rights, the Indiana Court of Appeals noted some troubling details involving the case.

Mother Z.G. appealed the termination of her parental rights of her daughter, C.G., whom she left in the care of a neighbor or then-boyfriend when she went to Utah and was arrested on drug charges. During that time, C.G. was sexually abused. C.G. was placed in foster care and has remained with that family.

The mother was originally jailed in Utah but then transferred to the custody of the U.S. Marshal’s Office in the Southern District of Indiana and jailed in Kentucky. Attempts to find her by Department of Child Services case managers failed, and mother wasn’t located until several months later when she learned from a friend there were termination and child in need of services proceedings regarding C.G.

Mother’s requests to appear in person at the hearings in Marion Juvenile Court were denied and she appeared via telephone. On appeal in Term. of parent-child rel. of C.G.; Z.G. v. Marion County DCS and Child Advocates, No. 49A04-1002-JT-75, mother claimed DCS and the trial court deprived her of due process, the trial court abused its discretion by excluding evidence regarding the permanent disposition for C.G., and there’s insufficient evidence to support the termination.

The Court of Appeals ultimately affirmed the termination but took issue with several details in the case. One DCS case manager’s affidavit of diligent inquiry filed when DCS sought to serve notice upon Z.G. by publication contained an inaccuracy. It said that the case manager had asked “family acquaintances regarding the parent’s whereabouts,” but the manager testified he used a form to generate the affidavit and that statement couldn’t be removed. He didn’t contact any family acquaintances. Judge Nancy Vaidik wrote that his attitude toward executing a sworn affidavit is “troubling,” but the inaccuracy didn’t increase the error in termination proceedings.

The appellate panel was also concerned by the fact that the DCS case manager, who first received a letter from the mother in November 2008, didn’t tell her a CHINS case was pending in his response letter in December 2008. The mother didn’t learn of the proceeding until she received an advisement of rights form and copy of the CHINS petition in a February 2009 letter, a little less than a month before DCS filed its petition for termination.

“DCS’s delay in sending Mother a copy of the CHINS petition and an advisement of rights effectively precluded Mother from participating in the CHINS case in its later stages and cannot be condoned. Nevertheless, we cannot conclude that DCS’s dilatory behavior substantially increased the risk of error in the termination proceedings,” Judge Vaidik wrote.

Finally, the appellate judges were troubled by the Marion Superior Court’s policy that juvenile prisoners cannot be within sight or hearing of adult prisoners, and the Juvenile Division lacks the facilities to separately house adult and juvenile offenders at the Juvenile Center. There is a blanket policy preventing adult inmates from participating in person in proceedings at the center, thus mother had to participate by telephone.

“As the evidence at the hearing shows, there are other Marion County courts with the capacity to hold adult prisoners, and those could be used in termination proceedings when necessary,” she wrote. “We can foresee circumstances under which an incarcerated parent’s in-person participation in a termination proceeding would be necessary, and the Marion Superior Court’s policy could deprive parents of their right to due process in those circumstances.”

Nonetheless, the judges found Z.G.’s due process rights weren’t significantly compromised by her telephonic participation because she was represented by counsel, she testified during the hearing, and was able to authenticate exhibits her counsel sent her.
 

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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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