ILNews

Court weighs cost of transportation

Back to TopCommentsE-mailPrintBookmark and Share

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.”•

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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT