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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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