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County must pay for parent's appointed attorney

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Noting a paradigm shift in parental rights termination cases due to House Enrolled Act 1001, one Indiana Court of Appeals judge believed the Department of Child Services instead of the counties should be responsible for the costs of appointed counsel in these types of proceedings.

But the majority in In Re The Termination of the Parental Relationship of J.G., a minor child; S.G., mother, and J.G., father, and Indiana Department of Child Services v. S.G., No. 32A04-0902-JV-79, saw nothing in the recent revision of the relevant statutes to suggest the General Assembly intended to shift the burden of costs from counties to the DCS. It reversed a trial court order and remanded for further proceedings.

The DCS was ordered to pay - over the agency's objection - the appointed attorney fees for S.G. in a termination hearing. It argued it's not statutorily required to pay for appointed counsel to represent parents during termination proceedings.

The majority agreed after reviewing Indiana Code Section 31-40-1-2, which changed following the 2008 enactment of HEA 1001 that took effect Jan. 1, 2009. Prior to the passage of HEA 1001, the statute stated counties were responsible for paying for appointed counsel in termination proceedings; the revised statute now says DCS shall pay the cost of any child services provided by or through the department for any child or the child's parent, guardian, or custodian.

Chief Judge John Baker and Melissa May concluded court appointed counsel doesn't constitute "services" within the meaning of the statute, relying on I.C. Section 31-40-1-1.5(c), which defines the term "services."

"Those 'services' include programs and types of assistance traditionally offered and overseen by DCS, and it is easy to see the logic in the General Assembly's decision to assign the cost of those services to DCS," wrote Chief Judge Baker. "Legal services, on the other hand, are not the types of services traditionally administered by DCS for children and parents. It is not evident, therefore, that the General Assembly intended that legal services be included in the above definition of 'services.'"

The majority also found instructive the fact that other parts of the code dealing with court appointed attorneys places the burden of paying on counties. It also noted unlike the statute dictating DCS pay for costs associated with guardians ad litem and court appointed special advocates, there's no explicit language in the statute to dictate that DCS pay for appointed counsel in termination hearings.

Judge Paul Barnes emphatically dissented, believing HEA 1001 shifted the costs under I.C. Section 31-40-1-2 to DCS.

"If we, as a State and a society, truly believe in the best interests of children and that the proper and appropriate care for them is a priority, we must then, in my opinion, assure that before they are taken from their families, these statutes are strictly followed and the DCS is put to its proof," he wrote.

The judge rejected DCS's argument that paying for appointed counsel for parents will "severely hinder" its goal of protecting children. He considered the appointment of counsel to be child services provided through DCS and that the agency must pay the cost of that service unless an exception applies.

"Because the DCS decides when to seek a termination, it should bear the cost of defending that decision," he wrote. "To heap the cost of these actions on the coffers of already cash-strapped counties is, in my mind, courting a legal and practical disaster."

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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