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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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