ILNews

Court reverses because of DCS notification policy

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has reversed the parental right termination decision made by a trial court, ruling that both the court and Indiana Department of Child Services in Porter County denied a biological father his due process by not notifying him of CHINS proceedings that ultimately led to his paternal rights being taken away.

An appellate ruling came today in Term. of Parent-Child Rel. of J.S.O.; S.O. v. Indiana Department of Child Services, 64A05-1005-JT-304, which involved a child born in May 2008 and two biological parents who weren’t married but had determined paternity at an Oklahoma hospital following the birth of J.O.

The father was arrested that year and extradited to Indiana on an outstanding warrant, and he has not had contact with J.O since then. In July 2008, the mother was arrested on cocaine and drug paraphernalia charges and the child was taken into protective custody, starting this CHINS process. But the Porter County DCS officials didn’t notify the father of any of those proceedings despite having his vital information and knowing about the out-of-state paternity affidavit, stating an agency policy that presumes paternity has not been established if a child is born out of wedlock in another state and a court order indicating otherwise hasn’t been issued.

Once the CHINS hearing was finished, the DCS did notify the father that the parental termination hearing was taking place and he got involved at that point and stayed a part of the case. Despite the father’s objections, in April 2010 the trial court ruled against him and involuntarily terminated his rights to the child, so he sued.

The three appellate judges all agreed that the state agency and Porter County trial court had “blatantly ignored” state statute and due process. They looked at Indiana Code 31-34-3-4 requiring notice to each of the child’s parents, and IC 31-34-3-4(2) that requires the DCS to make a good faith effort to contact the child’s parents within six hours after the child has been taken into custody.

“Notwithstanding our holding today, we pause to clarify that we are not commenting upon the sufficiency of the evidence in this case or on the extent to which a county office of the Indiana Department of Child Services must provide services to parents in a CHINS case,” Judge Patricia Riley wrote, being joined by Judge L. Mark Bailey. “Nor should this opinion be construed as adding an additional element to those already required by Indiana’s termination statute. Rather, we simply cannot ignore PCDCS’s and the trial court’s failure to follow numerous and substantial statutory mandates in this matter."

Judge James Kirsch agreed that the father was denied due process during CHINS proceedings, but he wrote in his dissent that this did not deprive him of procedural due process with respect to the termination of his parental rights. He cited how the father was given notice on the termination hearing, and the evidence of his past history clearly showed the termination rights should be terminated – as the trial court had done. The majority’s decision will result in enormous disruption to the child’s life, he 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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

ADVERTISEMENT