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Court weighs cost of transportation

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In LaPorte County, Juvenile Magistrate Nancy Gettinger tries to recognize and thank the police who transport inmates to her courtroom for parental rights termination hearings.

She knows the difficulty of making sure incarcerated parents are able to appear in order to get the best representation or participate in the proceedings.

teleconference-15col.jpg The Indiana Department of Correction has a videoconferencing room in its facilities where inmates can attend civil or criminal proceedings – including parental rights termination hearings and CHINS proceedings. (IBJ Photo/ Perry Reichanadter)

“If I can get them here in person, I try my best to do that, and I typically don’t have any issue with getting that incarcerated parent here,” she said. “As a judicial officer, I want to make sure I’m affording that person every opportunity to be heard because this is heavy-duty stuff, these parental rights. I’m pretty lucky in LaPorte County, but many others aren’t and have more trouble in transporting them to court.”

willis-maryjan-bw-mug.jpg Willis

On Oct. 11, the Indiana Supreme Court issued guidance to state trial courts in determining whether an incarcerated parent is permitted to attend a termination of parental rights hearing. The decision was welcomed by judges and attorneys who say the requirements up to now have been unclear.

Reaction on how much practical effect this ruling will have are mixed, but most say they see it as significant because it affirms some of the practices already used and gives them clear direction on what must be included in written findings in these cases. Judges and attorneys handling these cases also hope this opinion will send a message to the Department of Child Services that it needs to improve its investigation and notification policies in parental rights cases which are becoming more frequent statewide and involve more parents who are behind bars.

The holding came in a Marion County case, In the Matter of the Involuntary Termination of Parent-Child Relationship of C.G., Minor Child and Her Mother, Z.G. v. Marion County Department of Child Services and Child Advocates, Inc., No. 49S04-1101-JT-46, with Justice Steven David writing the unanimous opinion. While addressing the due process issues of the case, the justices summarily affirmed the Court of Appeals decision from August 2010 that found in favor of Marion County DCS and Child Advocates.

The mother, Z.G., appealed the termination of parental rights of daughter C.G. C.G. was born in 2000 and left in the care of a neighbor or then-boyfriend when Z.G. went to Utah, where she was arrested on drug charges. During that time, C.G. was sexually abused and eventually placed in foster care with a family that has since adopted her. Z.G. was put in federal custody and incarcerated in Kentucky.

Two DCS family case managers attempted to find Z.G. and notify her of the Child in Need of Services and parental termination proceedings. She was located in prison several months later when she learned from a friend about the proceedings regarding her daughter.

carmichael-vicki-mug.jpg Carmichael

Z.G.’s requests to appear in person at the hearings in Marion Juvenile Court were denied and she appeared via teleconferencing. She claimed DCS and the trial court deprived her of due process, the trial court abused its discretion by excluding evidence regarding the permanent disposition for C.G., and that there is insufficient evidence to support the termination. The Court of Appeals disagreed that any due process violation occurred, as does the state Supreme Court.

Still, David – a former juvenile judge in Boone County – found aspects about how the DCS handled the case in regard to inadequately notifying the mother about CHINS and parental rights termination proceedings questionable. He also expressed concern over how case managers filled out forms and that they failed to contact family members. Pointing to these examples, David described the DCS actions as extremely troubling, disturbing and inappropriate.

“In this case, several errors were made by DCS which should not have been made,” he wrote. “However, none of the errors rose to the level of violating Mother’s due process rights or warranting reversal.”

transportationLooking at the mother’s inability to attend the hearing, David examined an issue on which the court hasn’t previously offered guidance to state trial judges. The Court of Appeals addressed the issue for the first time in 2002 and found that parents weren’t denied due process by not being transported to their termination hearings. It also held alternative procedures such as speaker phone or video conferencing could be used.

The justices noted that Z.G. in this case participated in both days of the termination hearing telephonically with Spanish interpreters in the courtroom. That presents risks, they said, because of the “delicate” nature of the proceeding.

Examining the methods used in various states, the Indiana justices focused on a practice used in West Virginia that was outlined more than a decade ago in State of West Virginia ex rel. Jaenette H. v. Pancake, 529 S.E.2d 865 (W. Va. 2000).

Specifically, it says the trial judge should balance 11 factors that range from the impact of delaying a case for parental attendance, the effect of the parent’s presence and personal participation, any potential safety or security risk and the impact on the child’s best interest.

In the present case, the mother wasn’t allowed to attend the proceedings and participated by teleconferencing. Marion County has had a policy since 2006 prohibiting adults from being sent to juvenile courts, even though some continued to be able to attend throughout 2009.

“A blanket order prohibiting transporting a prisoner to a termination hearing is fraught with danger,” David wrote. “If the trial courts were allowed to hide behind such a blanket order, on review our appellate courts would be left with little to no information, forcing them to surmise why the trial court issued the order.”

In many Indiana counties, local judges and attorneys say their jurisdictions don’t have blanket transportation policies and discretion is used based on the situation at the time.

Evansville public defender Erin Berger said that she sees many clients who are incarcerated and that Vanderburgh Superior Judge Brett Niemeier already uses many of these same factors in considering whether transportation is warranted. Clients in federal custody typically do not appear, because the logistics outweigh the benefits, and she said the judge tries to get parents into court as often as possible.

Henry Circuit Judge Mary Willis believes this ruling will be helpful in weighing these due process considerations because it specifically allows for counties to take into account factors such as cost of transporting a parent. Clark Superior Judge Vicki Carmichael said this Supreme Court ruling won’t change how she handles cases involving parents incarcerated inside Indiana, but it will impact those cases where parents are incarcerated out of state. Since Clark County borders Kentucky, the judge said many parents are held in Kentucky and she will now balance the factors the justices adopted.

gettinger-nancy-mug.jpg Gettinger

“I certainly believe the better practice is to have parents present at such hearings as termination of parental rights does impact their fundamental interests in the care and custody of their children,” she said.

In northern Indiana, Gettinger said it is often easier to transport incarcerated parents because three state correctional facilities are located nearby. If transportation is not possible, she finds the Department of Correction video conferencing capabilities adequate, and she’s also allowed incarcerated parents to participate in the hearing by phone.

“That’s not my preference to do a video or teleconference,” Gettinger said, noting that one recent parent was set up in a prison cafeteria where the background noise made it difficult for everyone to communicate. “It’s really case by case and it does make a difference when someone’s there, but that’s not always possible.”

Though she doesn’t see this ruling having much impact on her decision-making process as it occurs now, Gettinger said it will cause her to make an official record with written findings outlying each of the factors the justices referenced. She hopes that the Supreme Court’s scolding of the DCS about its practices in these cases might help motivate the state to more actively work toward getting people into court.

“As a practical matter, not much will change. But we have guidance on what we can consider and what needs to be in our findings,” she said. “I enjoyed in the opinion how Justice David used his own experiences about DCS practices that we’ve felt are often too shabby. I’ve lectured them from time to time that these people do have rights, and it’s nice to have someone in our corner who’s aware of how this plays out in our courtrooms.”•

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. 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.

  5. 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.

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