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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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