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COA sets standard in parental rights cases

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In addressing a statutory inconsistency on parental rights terminations, the Indiana Court of Appeals has held that trial judges must offer findings of fact in those types of cases just as they're required to by law for children in need of services cases and grandparent visitation matters.

The three-judge appellate panel issued that holding today in a unanimous decision on In The Matter of the Termination of Parental-Child Relationship of A.K., Minor Child., and A.S. Mother and O.K., Father, v. Ind. Dep't of Child Services, St. Joseph County, No. 71A05-0905-JV-261, which comes out of the courtroom of St. Joseph Probate Judge Peter Nemeth.

The case involves the biological parents of A.K., who was born in 2004 and declared a CHINS by the time she was 3 years old. Facts of the case show that both parents had various legal, mental, and other problems leading up to the court's and DCS involvement. In April 2009, Judge Nemeth issued an order terminating both parents' rights but didn't make any findings of fact.

On appeal, the case was fully briefed before the Indiana Court of Appeals in early October and within a month the appellate court ordered Judge Nemeth to enter a revised final order containing complete findings of fact in support of his decision. After an extension, Judge Nemeth in January filed a motion to vacate the appellate court's order from late last year. Specifically, he claimed the higher court's order requiring complete findings of fact "is not authorized by the Indiana Rules of Procedure and usurps the power of the Supreme Court of Indiana to control practice and procedure in all the Courts of Indiana."

The appellate court denied Judge Nemeth's order in January and threatened to find him in contempt if he didn't comply by February. Judge Nemeth asked the Supreme Court to accept jurisdiction, but the justices dismissed that transfer motion in February. Judge Nemeth entered his findings that same week.

On the merits, the Court of Appeals ultimately affirmed Judge Nemeth's judgment in today's ruling, finding that clear and convincing evidence supports his decision terminating the parents' rights. But the panel first tackled the procedural hurdles that Judge Nemeth had raised about statutory requirements for findings of fact, issuing a holding that will impact all cases of this kind.

"The probate court was not statutorily required to enter findings of fact in issuing its judgment involuntarily terminating Mother's and Father's parental rights to A.K.," Judge Paul Mathias wrote for the panel, citing caselaw from Parks v. Delaware County Dep't of Child Servs., 862 N.E.2d 1275, 1278 (Ind. Ct. App. 2007). "But where, as here, the rights invoked are of constitutional magnitude, our review cannot begin and end with the mere fact that applicable statutes do not require a trial court to support its conclusions with any identifiable rationale."

Judge Mathias concurred with the earlier panel in Parks that found a trial court's termination order should include those findings and conclusions as law because of the serious and permanent nature of these parental rights proceedings.

"We believe that a judgment terminating the relationship between a parent and child is impossible to review on appeal if it is nothing more than a mere recitation of the conclusions the governing statute requires the trial court to reach. Indiana's parents and children deserve more, and the basis notions of due process inherent in our system of justice demand more," the court wrote, citing the CHINS and grandparent visitation statutes that require these findings.

"We hold today that our trial courts must treat them accordingly, with the constitutional gravity they clearly have, and enter findings of fact that support the entry of the conclusions called for by Indiana statute and the common law," the court wrote.

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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