ILNews

COA sets standard in parental rights cases

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT