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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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  1. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

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  3. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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